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HIGH COURT OF CHHATTISGARH, BILASPUR
Coram: Hon’ble Shri Sunil Kumar Sinha &Hon’ble Shri Inder Singh Uboweja, J J.
Writ Appeal No. 379 of 2013
APPELLANT Bulamal Chhatri, aged about 88years, S/o Late Shri RochaldasChhatri, R/o Shri Ram Chowk,Tikrapara, Tahsil & DistrictRaipur (C.G.)
Versus
RESPONDENTS 1 State of Chhattisgarh
Through: Principal Secretary,Department of Housing andEnvironment Mantralaya, D.K.S.Bhawan Raipur (C.G.)
2 Raipur Development AuthorityThrough its Chief ExecutiveOfficer, Raipur (C.G.)
3 Director, Town & CountryPlanning, State of Chhattisgarh,Raipur (C.G.)
4 Union of IndiaThrough: Ministry ofEnvironment and ForestParyavaran Bhavan, C.G.O.,Complex Lodhi Road New Delhi-110 003
Writ Appeal No. 380 of 2013
APPELLANTS 1 Smt. Jayvanti Chhatri, aged about53 years, W/o Shri Laxman DasChhatri, R/o Shri Ram Chowk,Tikrapara, Tahsil & DistrictRaipur (C.G.)
1
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
2 Smt. Sarda Devi Chhatri, agedabout 60 years, W/o RameshKumar Chhatri, R/o Shri RamChowk, Tikrapara, Tahsil &District, Raipur (C.G.)
3 Bulamal Chhatri, Aged about 88years, S/o Late Shri RochaldasChhatri, R/o Shri Ram Chowk,Tikrapara, Tahsil & DistrictRaipur (C.G.)
Versus
RESPONDENTS 1 State of Chhattisgarh
Through: Principal Secretary,Department of Housing andEnvironment Mantralaya, D.K.S.Bhawan Raipur (C.G.)
2 Raipur Development AuthorityThrough its Chief ExecutiveOfficer, Raipur (C.G.)
3 Director, Town & CountryPlanning, State of Chhattisgarh,Raipur (C.G.)
4 Union of IndiaThrough: Ministry ofEnvironment and ForestParyavaran Bhavan, C.G.O.,Complex Lodhi Road New Delhi-110 003
Writ Appeal No. 381 of 2013
APPELLANT Hemant Chhatri, aged about 34years, S/o Shri Laxaman DasChhatri, R/o Shri Ram Chowk,Tikrapara, Tahsil & DistrictRaipur (C.G.)
Versus
2
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
RESPONDENTS 1 State of Chhattisgarh
Through: Principal Secretary,Department of Housing andEnvironment Mantralaya, D.K.S.Bhawan Raipur (C.G.)
2 Raipur Development AuthorityThrough its Chief ExecutiveOfficer, Raipur (C.G.)
3 Director, Town & CountryPlanning, State of Chhattisgarh,Raipur (C.G.)
4 Union of IndiaThrough: Ministry ofEnvironment and ForestParyavaran Bhavan, C.G.O.,Complex Lodhi Road New Delhi-110 003
Writ Appeal No. 382 of 2013
APPELLANTS 1 Chinmay Builders PrivateLimited, Through- Director,Chinmay Davara, S/o ShriPrakash Davara, A/a 28 years,R/o 8, Puspak Apartment,Chhota Para, P.S. Raipur, DistrictRaipur (C.G.)
2 Jalaram Cooperative HousingSociety Limited, Through:President Narendra Davara, S/oShri Maganlal Davara, Agedabout 55 years, Raipur, P.S.Raipur (C.G.)
Versus
RESPONDENTS 1 State of Chhattisgarh
Through: Housing andEnvironment Department,Mantralaya, D.K.S. Bhawan
3
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
Raipur (C.G.)
2 The Secretary, Law andLegislative Affairs Department,Mantralaya, D.K.S. Bhawan,Raipur (C.G.)
3 Raipur Development Authority,Shastri Chowk, Raipur, Throughits Chairman, Raipur (C.G.)
4 The Town and CountryDevelopment Authority, Raipur(C.G.) Through its Chairman,Raipur (C.G.)
5 Shashikant Mirani S/o Late ShriJamnadas Mirani, A/a 54 years,R/o Shanker Niwas, Near ChowkTower Raipur (C.G.)
Writ Appeal No. 389 of 2013
APPELLANTS 1 Vijay Rajani S/o Late Shri D.M.Rajani, Aged about 47 years, R/oLakhenagar, Raipur, P.S. SundarNagar, Post Raipur, DistrictRaipur (C.G.)
2 Smt. Anita Rajani, Aged about 43years, W/o Shri Vijay Rajani, R/oLakhenagar, Raipur, P.S. SundarNagar, Post Raipur, DistrictRaipur (C.G.)
3 Pradeep Prithwani, S/o JotumalPrithwani, Aged about 36 years,R/o Lakhenagar, Raipur, P.S.Sundar Nagar, Post Raipur,District Raipur (C.G.)
4 Rakesh Amrani, S/o SewakramAmrani, Aged about 37 years,R/o Katoratalab, Post & P.S.Katoratalab, Raipur (C.G.)
4
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
Versus
RESPONDENTS 1 State of Chhattisgarh
Through: The Secretary,Department of Housing andEnvironment Mantralaya, D.K.S.Bhawan, Post & P.S. CityKotwali, Raipur (C.G.)
2 Raipur Development AuthorityThrough The Chief ExecutiveOfficer, Post & P.S. Raipur (C.G.)
3 Director, Town & CountryPlanning, State of Chhattisgarh,Post & P.S. Raipur (C.G.)
And
Writ Appeal No. 393 of 2013
APPELLANTS 1 Rajendra Shankar Shukla, Son oflate Shri Ramavtar Shukla, Agedabout 68 years, R/o 23/56,Malviya Road, Post & P.S. CityKotwali, Raipur (C.G.)
2 Ravi Shankar Shukla, Son of lateShri Chandradutt Shukla, Agedabout 58 years, R/o 23/56Malviya Road, Post & P.S. CityKotwali, Raipur (C.G.)
3 Dr. Ranjana Pandey, Wife of ShriVivek Pandey, Aged about 43years, R/o Tirupati Apartments,Pachpedi Naka, Post & P.S.Pachpedi Naka, Raipur (C.G.)
Versus
RESPONDENTS 1 State of Chhattisgarh, Through
The Principal Secretary,Department of Housing andEnvironment, Government of
5
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
Chhattisgarh, Mantralaya, D.K.S.Bhawan, Post & P.S. Gol Bazar,Raipur (C.G.)
2 Raipur Development Authority,Through its Chief ExecutiveOfficer, Post & P.S. City Kotwali,Raipur (C.G.)
3 Director, Town & CountryPlanning, Government ofChhattisgarh, Post & P.S. CityKotwali, Raipur (C.G.)
4 Collector, District Raipur, Post &P.S. Gol Bazar, Raipur (C.G.)
5 Gram Panchayat, Devpuri,Through Sarpanch, (NowCommissioner, MunicipalCorporation, Raipur), Post & P.S.Civil Lines, Tahsil & DistrictRaipur (C.G.)
6 Gram Panchayat, Dunda,Through Sarpanch (NowCommissioner, MunicipalCorporation, Raipur), Post & P.S.Civil Lines, Tahsil & DistrictRaipur (C.G.)
7 Gram Panchayat, Boriyakhurd,Through Sarpanch (NowCommissioner, MunicipalCorporation, Raipur), Post & P.S.Civil Lines, Tahsil & DistrictRaipur (C.G.)
8 Gram Panchayat, Dumartarai,Through: Sarpanch, (NowCommissioner, MunicipalCorporation, Raipur), Post & P.S.Civil Lines, Tahsil & DistrictRaipur (C.G.)
9 Raipur Municipal Corporation,Through The Commissioner, JaiStambh Chowk, Post & P.S. CivilLines Raipur (C.G.)
6
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
WRIT APPEALS UNDER SECTION 2(1) OF THE CHHATTISGARHHIGH COURT (APPEAL TO DIVISION BENCH) ACT, 2006
-------------------------------------------------------------------------------------------Appearance:
Mr. N.K. Vyas, Advocate for the appellants in W.A. Nos.379/2013; 380/2013 & 381/2013
Mr. Sankalp Kochar, Advocate for the appellants in W.A. No.382/2013.
Mr. Varun Sharma, Advocate for the appellants in W.A. No.389/2013.
Mr. B.P. Sharma and Mr. Rohit Shukla, Advocates for theappellants in W.A. No.393/2013.
Mr. Prashant Desai, Senior Advocate with Mr. Rutul Desai,Advocate for the State.
Ms. Pinki Anand, Senior Advocate with Mr. Rajesh Ranjanand Mr. Sumesh Bajaj, Advocates for Raipur DevelopmentAuthority.
Mr. Vivek Shrivastava and Mr. H.S. Ahluwalia, Advocates forthe Union of India.
Mr. H.B. Agrawal, Senior Advocate with Ms. Meera Jaiswal,Mr. Pankaj Agrawal, Ms. Preeti Yadav & Ms. IturaniMukherjee, Advocates for Raipur Municipal Corporation.
-------------------------------------------------------------------------------------------JUDGMENT (16.06.2014)
Following judgment of the Court was delivered by
SUNIL KUMAR SINHA, J.
(1) These appeals are directed against a common judgment dated
15.04.2013 passed in a batch of writ petitions namely- W.P.(C) No.
6280 of 2010 and other connected matters, in all 23 writ petitions,
including the writ petitions filed by the appellants herein. By the
impugned judgment, all the writ petitions, filed by the appellants
and other petitioners, challenging the validity of Kamal Vihar Town
7
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
Development Scheme No. 4 (Scheme/TDS) on various grounds,
have been dismissed by the Writ Court.
(2) The facts, briefly stated, are as under:-
2.1 Raipur Development Authority (RDA) has been duly
established u/S 38 (1) of the M.P. (C.G.) Nagar Thatha Gram
Nivesh Adhiniyam, 1973 (Adhiniyam/Adhiniyam 1973/Act,
1973). The above Town Development Scheme (TDS) has been
planned by the RDA discharging its functions under Sub-
section (2) of Section 38. It covers five villages namely- Dunda,
Boriya Khurd, Tikrapara, Deopuri and Dumartarai.
2.2. The said scheme has a total project area of 647.84 Hect.,
out of which the area available for development is 610.46
Hect., in which 482.29 Hect. is private land and 128.17 Hect. is
government land. The position of the land(s) in question
would be clear from the following table which we mark as
Table-I:
Table-I
PARTICULARS OF TDS-4 (KAMAL VIHAR)
S.No. PARTICULARS AREA1 Total Project Area 647.84 Hect.2 Land Area Available for Development 610.46 Hect.3 Total Private Land 482.29 Hect.4 Total Government Land 128.17 Hect.5 No. of Land Owners 4969 482.29 Hect.6 LAND CONFIRMATION 4302 440.51 Hect.7 AGREEMENT FOR LAND ISSUED
FROM PLANNING SECTION3904 398.77 Hect.
8 MONEY CONFIRMATION 29 1.42 Hect.9 Money Received against land 4 0.148 Hect.10 CLA AWARD 543 28.17 Hect.11 CLA (Award awaited) 95 16.71 Hect.12 LAND TRANSFERRED TO RDA
(Through Agreements)2553 167.52 Hect.
13 LAND UNDER LITIGATION INHIGH COURT IN APPEALS
6 12.52 Hect.
8
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
2.3 According to the development plan, in the above area of
647.84 Hect. further areas have been marked for recreational
land, roads and lanes and other miscellaneous infrastructure
like, educational, hygienic and various public purpose
amenities which would be clear from the following table
which we mark as Table-II:
Table-II
Area Analysis of TDS-4 (Kamal Vihar)
S.No. PARTICULARS AREA1. Total available Scheme Area under TDS-4 647.84 Hect.
2. Area under Recreational land use(a) City Park(b) Regional Park(c) Water Bodies
25.43 Hect.103.98 Hect.0.83 Hect.
3. Area under Roads(a) RDP 2021 road(b) TDS 4 roads [i/C road over canal](c) TDS 4 internal sector roads
54.12 Hect.19.50 Hect.94.61 Hect.
4. Misc.(a) Community open spaces(b) Graveyard/cremation grounds(c) Approved Layout & Existing construction(d) Bus Stand
38.52 Hect.3.27 Hect.37.38 Hect.0.32 Hect.
377.96 5. Net area available for allotment [647.84-377.96]
Hect.(a) Residential(b) Area reserved for EWS(c) Commercial (i) CBD (ii) Commercial Belts (iii) Sector Level/Local Shopping centre(e) PSP(f) Sector Level (i) Health (ii) Schools(g) Composite
269.88 Hect.188.91 Hect.32.15 Hect.
8.02 Hect.2.31 Hect.5.83 Hect.16.81 Hect.2.40 Hect.5.75 Hect.7.70 Hect.
6. Total Area available for allotment -(a) Area allotted to land holders -(b) Land Pool for Infrastructure Development-(c) Area reserved for EWS
269.88 Hect.178.38 Hect.59.35 Hect.32.15 Hect.
9
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
2.4 The broad features of the Scheme would show that there
shall be 15 Sectors and the estimated cost of development of
infrastructure would be Rs.1085 crores. The Government has
agreed to hand over its land to the RDA and the land
belonging to the private owners are to be taken over by the
consent or by acquisition u/S 56 of the Act. The RDA has
planned to return the developed reconstituted plots to the
private land owners and it shall not charge any contribution
cost/incremental cost from them with a view to not saddle
with any financial burden on the land holders.
2.5 The various amenities proposed to be given in the
development plan are four lane main roads of 75
meters/45mts/30mts width; two lane roads of 24 mts/18 mts;
with other infrastructure, including street light, service duct,
underground drainage, green area, foot-path, cycle track,
water supply, sewerage treatment plant, central business
district and 30 meters wide commercial tract, abutting ring
road etc.
2.6 The RDA has planned to give about 35% area of
developed plot to the land owners and the remaining area of
their undeveloped plot would be retained which may go to
the other land owners or which may be utilized for the above
facilities under the Development Scheme.
2.7 According to the RDA, 15% of the developed plots have
also been reserved for Economically Weaker Section (EWS)
which comes about 32.15 Hect.
10
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
2.8 Out of total 4969 private land owners, 39 land owners
did not agree to the Scheme/procedure adopted and preferred
above 23 writ petitions on various grounds which were
dismissed, thereafter, these six Writ Appeals have been filed
by the 13 land owners.
(3) We have heard counsel for the parties.
(4) Learned counsel for the appellants have firstly contended that
there was no zoning plan, therefore, in absence of zoning plan,
preparation of town development scheme (TDS) would stand
vitiated.
(5) To appreciate the said argument, we shall have to look into
the broad features of Adhiniyam 1973. The very purpose of
Adhiniyam 1973 is to make provision for planning and development
and use of land; to make better provision for the preparation of
development plans and zoning plans with a view to ensuring town
planning schemes are made in a proper manner and their execution
is made effective; to constitute Town and Country Planning
Authority for proper implementation of town and country
development plan; to make provision for the compulsory
acquisition of land required for the purpose of the development
plans; and to make legal provisions for connected incidental
matters. CHAPTER III of Adhiniyam deals with regional planning
11
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
and makes provision for establishment of regions, survey of the area
concerned, preparation of regional plans etc. Section 2 (q) defines
“regional plan” which means a plan for the region prepared under
this Act, and approved by the State Government. CHAPTER IV of
Adhiniyam deals with planning area and development plan with a
provision of publication of draft development plan under Section 18
after its preparation under various other provisions of CHAPTER
IV. We may note that under the said process a Committee
constituted under Section 17-A has to consider and suggest
modifications and alterations in the draft development plan and to
hear the objections after publication of the draft development plan
under Section 18. It is after this stage, the sanction of development
plan has to be taken from the State Government under Section 19,
which may either approve the development plan or may approve it
with such modifications as it may consider necessary or may even
return it to modify the same or to prepare a fresh plan in accordance
with such directions as it may deem appropriate. The development
plan shall come into operation from the date of publication of notice
under sub-section (4) of Section 19 and from such date it shall be
binding on all development authorities constituted under the
Adhiniyam and all local authorities functioning within the planning
area.
12
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
(6) It is after this stage, comes the stage of preparation of zoning
plan which has been defined in CHAPTER V. Whether preparation
of a zoning plan is condition precedent for preparation of a town
development scheme (TDS) under Section 50 of the Adhiniyam
would be clear from the provisions of Sections 20 & 21. Section 20 of
Adhiniyam deals with preparation of Zoning plans and provides that
the local Authority may on its own motion at any time after the
publication of the development plan, or thereafter if so required by
the State Government shall, within six months of such requisition,
prepare a Zoning Plan. What would be the contents of zoning plan
have been described in Section 21 (1). The use of word ‘may’ in
Section 20 makes it clear that it would be on the local authority in all
its wisdom to think about preparation of a zoning plan and thus the
intention of legislature is that the above provision so far as local
authority is concerned, is not mandatory for it, however, if the
requirement is felt by the State Government, the local authority shall
be bound by it to prepare a zoning plan because in second limb of
Section 20 word ‘shall’ has been used opposing the word ‘may’ in
the first limb. We are fortified in our views by the plain rule of
interpretation that the use of word ‘may’ at one place and ‘shall’ at
another place in the same section may strengthen the inference that
these words have been used in their primary sense and that ‘shall’
should be construed as mandatory. That apart, ‘may’ is held in all
13
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
soundness of construction to confer a power but the word ‘shall’ is
held to make that power, or the exercise of that power compulsory.
(Vide: Principles of Statutory Interpretation by Justice G.P. Singh,
Sixth Edition 1996 p. 261).
(7) In Section 20, firstly word ‘may’ has been used so far as
discretion of the local authority is concerned, thus if the local
authority would be of opinion that a zonal plan should be prepared,
it may do so and it is not a mandatory requirement, but if it is felt by
the State Government that a zoning plan is necessary and directions
are issued, a zoning plan has to be prepared and no further
discretion would lie with any authority because the second part of
Section 20 uses the word ‘shall’.
(8) It also does not appear to be mandatory for the local authority
because Section 21 makes an indication that the zoning plan shall
enlarge the details of land use as indicated in the development plan
and shall further indicate the land liable to acquisition for public
purpose etc., define in detail and provide for areas reserved for
agriculture, public and semi public open spaces, parks, playground,
gardens, recreational areas, green-belts and nature reserves; allocate
in detail areas or zones for residential, commercial, industrial,
agricultural and other purposes; define and provide the road and
streets and indicate about the other infrastructure and amenities
14
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
proposed under the development plan. That is to say that if in the
opinion of the local authority or the Government it is felt that the
development plan requires further clarification on the details of land
use etc., it may be directed to be done under the zoning plan. This
makes it clear that it would depend on the facts and circumstances
of each case as to whether the preparation of a zoning plan is
essential or not and if it is essential, it has to be prepared which
would contain the above details. We are fortified in our view by the
decision in Sanjai Gandhi Grah Nirman Sahkari Sanstha Maryadit
–Vs- State of M.P. and Others, AIR 1991 Madhya Pradesh, p.72.
Thus it is clear that preparation of a zoning plan is not a mandatory
condition for preparation of a town development scheme under
Section 50 of the Adhiniyam 1973.
(9) It was next contended that there is no scientific basis for
giving 35% developed plot and the decision is arbitrary. It was also
contended that the said action is in contravention of Section 50 (6)
(vi) of the Adhiniyam.
(10) The objection relating to 35% developed plot was dealt with
by the Committee constituted under sub-section (5). In Chapter IV of
the report dated 8.6.2010 (Annexure-R-3/2), the Committee has
discussed about the shape of the reconstituted plots. We find in the
15
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
report that for this purpose, the provisions of Chhattisgarh Bhumi
Vikas Niyam, 1984 and National Building Code of India, 2005 were
considered. This scheme is a self finance scheme and the
Government has decided not to take any monetary charge for the
infrastructure development which includes various facilities which
we have mentioned earlier. The contents of Table-II (supra) would
show that out of 647.84 Hect., the land available for allotment is only
269.88 Hect. That is to say that 377.96 Hect. have been proposed for
infrastructure development which includes city park, regional park,
water bodies, various roads, community open spaces,
graveyard/cremation ground, bus-stand etc. Apart from that 10%
has been kept in developmental pool and 15% has been kept
reserved for EWS. Therefore, developed land available for allotment
appears to be about 35% of the total land area. The committee has
also quoted the provisions of Avas Niti, 1995 which talks about
giving option to the land owners for taking 20% developed land of
their original land area or their land may be acquired under the
Land Acquisition Act, 1894. It was held that this process may be
applicable for all developmental agencies. In the instant case 35%
developed plots are not being given to all the land owners
uniformly. Reconstituted plots which are being given are in between
35% to 58% on the uniform slab based on original land area and no
one has been given less than 35%. The recommendation of the
16
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
committee would show that it has considered almost all the
objections regarding developed plot area and its shape and size.
Thus, the 35% arrived at is not baseless and is based on the policy of
the State and other statutory provisions of National Building Code
of India, 2005 and Chhattisgarh Land Development Rules 1984. We
may further note that this Court does not sit as an Appellate
Authority over the decision of the expert committee. Unless the
decision is shown to be malafide or contrary to any law or utterly
perverse, it has to be taken as correct (Vide: Greater Kailash Part II
Welfare Assn. and others –Vs- DLF Universal Ltd and others (2007)
6 SCC 448).
(11) It was argued that after deducting 35% from the original plot
area, the area lost by the land owner would be 65%, therefore, the
contribution exceed 50% which is in violation of Section 50 (6) (vi) of
the Adhiniyam. The above provisions, we quote, says to evaluate
the increment in value of each reconstituted plot and assess the
development contribution leviable on the plot holder. On analysis of
classified percentage of the developed plots, we find that 15% plots
are reserved for EWS. This cannot be said to be coming under
development contribution because the said plots or the monetary
value thereof are not being retained by the RDA. What is not to
exceed more than 50% is the development contribution leviable on
17
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
the plot holder. Thus if we add this 15% to the 35%, in general
manner it would come to 50% of the total original land area and in
this way the argument relating to exceeding 50% towards
developmental contribution must fail. Making allotment for EWS is
a public purpose and the town planning authority is not prohibited
in law from providing the plots to the persons belonging to the said
Section (Vide: Kiritbhai Nandvadan Bhatt and Ors. –Vs-
Ahmedabad Municipal Corporation and Ors., 1996 (1) G.L.H. 905).
It was argued that the RDA cannot serve the public purpose by
snatching plots of the land holders without authority of law. The
submission appears to be attractive in general sense, but in the
instant scheme the situation is different. Here the planning is not
only on the contribution of the lands by private land holders. In this
planning (Scheme) 128.17 Hect. of government land has also been
added and the lands of the private land holders and the government
land have been brought into hotchpotch within the fore-corners of
the Adhiniyam and then only the arrangement for EWS has been
made. It appears to be quite reasonable. Thus it cannot be said that
the developmental contribution of the private land holder has
exceeded more that 50% and there is violation of Section 50 (6) (vi)
of the Adhiniym.
18
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
(12) It was next contended by counsel for the appellants that the
master plan has been changed; jurisdiction under Section 23-A has
been wrongly exercised; it is contrary to Section 23-A; the
development plan comes first and thereafter the scheme has to be
framed; therefore, the entire scheme vitiates. Reliance was placed on
Chairman, Indore Vikas Pradhikaran –Vs- Pure Industrial Coke &
Chemical Ltd. and Others, (2007) 8 SCC 705.
(13) To appreciate the argument, we shall firstly look into some
important dates. Initially master plan 2011 was enforced and the
resolution was passed by the RDA on 21.3.2006 for a residential
scheme in village Dunda. Thereafter memo of land use in villages
Dunda, Boriya Khurd and Tikrapara was sent on 8.5.2006. On
31.7.2006 RDA wrote a letter to the Special Secretary, Urban and
Housing Department requesting for permission of publication u/S
50 for integrated township scheme for villages Dunda, Tikrapara,
Boriya Khurd and Deopuri with a request to change the land use
u/S 23-A. On 18.5.2007, Director, Town and Country Planning
replied to the letter dated 3.5.2007 giving permission for publication
u/S 50. On 25.1.2008, the Government granted permission to RDA
for publication of the revised scheme u/S 50 which was a proposal
for 416.93 acres. Thereafter the revised master plan (2021) got
sanctioned and published on 7.4.2008. Then various correspondence
19
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
for granting permission to publish declaration of intention u/S 50(1)
were made and ultimately on 5.6.2009 notification was published in
the official gazette regarding the intention to prepare town
development scheme for 416.93 acres. Thereafter on 14.7.2009 RDA
passed a resolution for changing the earlier proposal of 416.93 acres
and increased it for an area of 2300 acres in villages Dunda,
Tikrapara, Boriya Khurd, Dumar Tarai and Deopuri. Official
correspondence were made between RDA and the State
Government and then it was granted on 10.8.2009 and thereafter a
notification u/S 50 (2) for amended scheme was published in the
official gazette on 4.9.2009. Thus, it is not a case in which the scheme
was published prior to publication of the master plan. The dates
mentioned by us would show that the master plan was published
first and thereafter the scheme was published.
(14) Section 13 (1) of the Adhiniyam provides that the State
Government may, by notification, constitute planning areas for the
purposes of the Adhiniyam and define the limits thereof. Planning
area, as per Section 2 (o) therefore, has to be declared by exercising
powers u/S 13. Then after completion of formalities, a draft
development plan has to be prepared and ultimately after sanction
the draft development plan has to be published which shall come
into operation from the date of its publication u/S 19 (5) (4) and
20
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
from date of publication it shall be binding on all development
authorities constituted under the Adhiniyam and all local authorities
functioning within the planning area. The development is a
continuous phenomena. It can never be stopped. Therefore, finality
has not been attached to a development plan by the Legislature in
all its wisdom and Section 19 (5) (4) only talks about its binding
nature. It is for all these reasons, the Legislature has provided
Sections 23 & 23-A so that any need felt after finalization of the
development plan, which would also include the
inclusion/extension of planning area may be fulfilled. Thus Section
23 & 23-A are enabling Sections by which the development plan or
zonal plan can be reviewed and modified. Thus, it cannot be
accepted that the development plan/master plan cannot be
changed.
(15) The case of Indore Vikas Pradhikaran, cited by the counsel for
the appellants, is distinguishable on facts. In the said case two
villages were not coming within the planning area, but the town
development scheme was made, therefore, it was held that the
concerned authority has no power to make such scheme in respect
of two villages. That apart, it was observed that there cannot be
town development scheme without a final development plan. In
case on hand, there was a final development plan before the
21
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
declaration of initiation of scheme by RDA. The dates would clearly
show that on this account the scheme does not vitiate.
(16) Arguing the above points, attack was also made on certain
modifications in the scheme which took place after 14.7.2010. These
modifications were in relation to change of land user u/S 23-A.
Three important changes in land user in the master plan 2021 were
proposed by the RDA. First was where the major part of land at one
place was going in residential and the minor part was going in
agricultural. Here it was sought that the minor part of agricultural
be added to the major part of residential. Second was where the
major part of the land at one place was going in agricultural and
minor part was going in residential. Here it was proposed that the
minor residential part be also placed in major agricultural part.
Third was change of land user of the area reserved for educational
purpose by making change in location and adding said area for
residential purpose. It was argued by State counsel and counsel for
RDA that this was proposed to make plan workable so that the land
of one species of agricultural or residential come at one place. So far
as permissibility to do it under the law is concerned, as we have
already held, there was no difficulty. The question relates to its
genuine necessity and public welfare. According to the scheme of
Sections 23 & 23-A, primarily, these factors for judging would be in
22
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
domain of concerned authority or State Government as has been
provided under these Sections. We are guided by language of both
the Sections which clearly convey that all this was permissible for
urgent public purpose. Explanation to Section 23-A makes it clear
that for the purpose of this section ‘public purpose’ includes
creation, development and maintenance of human settlements or
any part thereof. The Explanation is inclusive, therefore, it has to be
taken in a broad sense keeping in mind the immediate necessity
which would be beneficial to the people at large and making the
scheme workable in public interest. If the lands of one species are
kept in one place making area embarked enlarged, it cannot be said
as unreasonable. It’s a matter of common knowledge that many
times, agricultural work in a small piece of land which is
surrounded by large residential locality is not fruitful. Likewise a
small piece of land for residential purpose surrounded by
agricultural land may not be suitable for the residents who would
always like to be among the community. That apart, we must
mention that so far as the present appellants are concerned, none of
them has a land coming within the area wherein the above
modifications were sought by the RDA. Moreover the modifications
sought were hardly affecting 8% of the total land area of the town
development scheme which would be further minimized because
some part of proposal was ultimately not sanctioned.
23
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
(17) It was also argued that there was no urgent public purpose.
Section 54 of the Adhiniyam provides that if the Town and Country
Development Authority fails to commence implementation of the
Town Development Scheme within a period of two years or
complete its implementation within a period of five years from the
date of notification of the final scheme under section 50, it shall, on
expiration of the said period of two years or five years, as the case
may be, lapse. Therefore, the respective implementations have been
restricted within the specified period and a town development
scheme has to be completed in scheduled time frame. We have
already held that change in said land user was for public purpose.
Therefore, invocation of jurisdiction u/S 23-A was exercised for the
purpose of completion of the scheme within specified time period
and save it from lapsing and the need was an urgent public need.
Moreover, no fruitful purpose would be served in remitting the
matter to the initial stage because in absence of any legal
impediment it would a mere formality and would adversely affect
the interest of public at large whose lands have already been taken
and who would be waiting for the developed plots because a delay
is also likely to be caused in adopting such process. We are of the
view that for the foregoing reasons, the argument advanced by the
counsel for the appellants cannot be accepted.
24
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
(18) It was next contended that there was violation of procedure as
stated u/S 23-A (2). Two points were raised in this regard. First,
notices were not published continuously for two days in the local
newspapers; and second, modified plan was not published along
with notices in the newspapers and at conspicuous place, thereby
violating the mandatory provisions.
(19) It is an admitted position that the notice of draft modification
plan was published in two daily newspapers on 5.11.2010 and
7.11.2010. Learned counsel for the appellants have contended that
there was a gap of one day in publication of the notices, therefore, it
cannot be held as the said notices were published continuously for
two days as contained in Section 23-A (2). They have relied on
Bhopal Citizens’ Forum –Vs- State of M.P. and Others, 2011 (1)
M.P.L.J. 51. Learned State counsel has argued, and it is also factually
correct, that 6.11.2010 was holiday on account of Dipawali Festival
and the two newspapers in which the notices were published, were
not published on 6.11.2010. In Bhopal Citizens’ (supra), it was held
that the provisions of Section 23-A as amended by the Amending
Act, 2005, are intra vires and it was also held that manner of
requirement of publication of notice contained in Section 23-A (2) is
mandatory in nature. There is no dispute about the above legal
25
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
position. However, in the said case, as we find from Para-28, the
context was that the publication was made only once and there was
no second publication at all. But, in case on hand, the publication
was made on two days and so far as requirement of publication on
two days in two daily newspapers is concerned, there is no
violation. The question is whether the publication on 5.11.2010 and
7.11.2010 when the newspapers were not published on 6.11.2010 on
the eve of Dipawali, would be held as continuous publication or
not? The learned single Judge has dealt with this ground in Para-23
of the impugned judgment, and referring to the decision of S.E. and
Stamping Works Limited –Vs- The Workmen, AIR 1963 SC 1914, has
held that it shall be treated that the notification was published on
two continuous days. We have carefully examined the reasons for
holding like that and we find it to be correct and logical. The words
used like ‘continuously for two days’ in sub-section (2), if given
plain meaning in the facts and circumstances of the case, would
mean that two days of continuous dates of publication of the
newspapers. If the newspapers were not published on the second
day and the third day’s publication was in continuation of the first
day’s publication, it would be treated that the notice was published
on two continuous days and argument advanced by counsel for the
appellants must fail.
26
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
(20) For the next argument we note that in the newspaper, khasra
numbers, village name and the proposed modifications were
mentioned and it was also mentioned that the draft development
plan is open for inspection and any aggrieved person can inspect it
in the Office of Collector, Raipur; Joint Director, Town and Country
Planning, Regional Office, Raipur; Chief Executive Officer, RDA and
Commissioner, Municipal Corporation, Raipur. It was also clearly
mentioned in the notice about submission of Objections etc. For
ready reference, we quote the relevant portion of the concerned
notification:-
2- mDr izLrkfor mikarj.k jk;iqj izkf/kdj.k] jk;iqj dh dey fogkj
;kstuk dzekad & 04 ds iz;kstu ds fy, gS A mikarj.k izLrko dh izfr
ekufp= lfgr dysDVj] jk;iqj] la;qDr lapkyd uxj rFkk xzke fuos’k
{ks=h; dk;kZy; jk;iqj] eq[; dk;Zikyu vf/kdkjh] jk;iqj fodkl
izkf/kdj.k] jk;iqj RkFkk vk;qDr uxj ikfyd fuxe jk;iqj ds dk;kZy;ksa esa
dk;Zy; le; esa vodk’k NksM+dj fujh{k.k ds fy, miyC/k jgsxh A
vr% izLrkfor mikarj.k ls izHkkfor gksus okys O;fDr;ksa ls bl
lwpuk ds nSfud lekpkj i=ksa esa izdk’ku dh frfFk ls 15 fnol ds Hkhrj
fyf[kr vkifRr;ka rFkk lq>ko vkeaf=r fd;s tkrs gS A vkifRr RkFkk
lq>ko fuEufyf[kr dk;kZy;ksa esa izLrqr fd;s tk ldrs gS A
¼1½ dysDVj dk;kZy; & jk;iqj A¼2½ la;qDr lapkyd] uxj rFkk xzke fuos’k’ {ks=h; dk;kZy;] jk;iqj A¼3½ eq[; dk;Zikyu vf/kdkjh] jk;iqj fodkl izkf/kdj.k] jk;iqj A¼4½ vk;qDr] uxj ikfyd fuxe jk;iqj A
NRrhlx<+ ds jkT;iky ds uke rFkkvkns’kkuqlkj
¼,u- cStsUnz dqekj½ izeq[k lfpo]th & 15406 NRrhlx<+ ‘kklu vkokl ,oa Ik;kZoj.k foHkkx
27
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
It is thus clear that the modified plan was made available for
inspection of public at large at conspicuous places as per Section
23-A (2).
(21) It was next contended that the notification date 4.3.2011 was in
violation of Article 166 of the Constitution as it was not duly
authenticated by Governor. Learned counsel for the State has
contended that the practice prevailing since the erstwhile State of
Madhya Pradesh is that if there are more than one notifications
published on the same day, they are printed in continuation and
after the last notification it is mentioned that they were issued in the
name of and by order of Governor and signature of the concerned
Secretary is appended. Various notifications were shown to us
which were published in the above fashion in the concerned
Gazette. It appears to be a long past practice prevailing in the State.
In Iftikhar Ahmed Son of Dost Mohammad –Vs- State of Madhya
Pradesh and Others, AIR 1961 MP 140), it was held that when
several notifications appeared together in the Gazette under the
signature of the Under Secretary at the end of the series, there is no
illegality and there is proper authentication of all such notifications.
Moreover, the memo issued for publication would show that it was
issued by the order and on the name of the Governor. Thus
28
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
argument relating to improper authentication of the notification
fails and the same is rejected.
(22) Learned counsel for the appellants have next contended that
the lands of private owners are being taken without payment of
compensation and without valid transfer of title.
(23) Learned counsel for the respondents have opposed these
arguments and have referred to the provisions of Sections 49 & 56 of
the Adhiniyam. The State counsel has also referred to the decision of
State of Gujarat –Vs- Shantilal Mangaldas and Others, AIR 1969
SC 634.
(24) Section 49 of the Adhiniyam provides that a town development
scheme may make provision for any of the following matters:-
(i) acquisition, development and sale or leasing of
land for the purpose of town expansion;
(ii) acquisition, relaying out of, rebuilding, or
relocating areas which have been badly laid out or which has
developed or degenerated into a slum;
(iii) acquisition and development of land for public
purposes such as housing development, development of
shopping centres, cultural centres, administrative centres;
(iv) acquisition and development of areas for
commercial and industrial purposes;
29
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
(v) undertaking of such building or construction work
as may be necessary to provide housing, shopping,
commercial or other facilities;
(vi) acquisition of land and its development for the
purpose of laying out or remodeling of road and street
patterns;
(vii) acquisition and development of land for
playgrounds, parks, recreation centres and stadia;
(viii) reconstruction of plots for the purpose of
buildings, roads, drains, sewage lines and other similar
amenities;
(ix) any other work of a nature such as would bring
about environmental improvements which may be taken up
by the authority with the prior approval of the State
Government.
(25) Section 56 of the Adhiniyam gives power to the Town and
Country Development Authority for acquisition of land. It provides
that after the date of the publication of the final town development
scheme under section 50, but not later than three years therefrom,
the said Authority may proceed to acquire by agreement the land
required for the implementation of the scheme. It further provides
that if the said Authority fails to make acquisition in the above
manner, the State Government may proceed to acquire such land
under the provisions of the Land Acquisition Act, 1894 and on the
payment of compensation awarded under that Act and any other
charges incurred by the State Government in connection with the
30
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
acquisition, the land shall vest in the Town and Country
Development Authority subject to such terms and conditions as
may be prescribed. Thus, there are two modes of acquisition as per
the statute. One by agreement and other by general law of
acquisition under the Act, 1894. So far as compensation is
concerned, it would be mandatory if the acquisition is under the
general law that is under the Act 1894 and in such case the land in
question shall vest in the Town and Country Development
Authority making it to be clear case of vesting under the law. So far
as acquisition by agreement is concerned, there is neither vesting
nor transfer of title, therefore, the Adhiniyam does not provide for a
compensation in such cases. In the instant case, the developed plots
have been proposed to be given to the land holders and who are not
agreeable to it, have been given option to take monetary value.
(26) In Shantilal (supra), it was observed with reference to Bombay
Town Planning Act that in making a Town Planning Scheme the
lands of all persons covered by the scheme are treated as if they are
put in a pool. The Town Planning Officer then proceeds to
reconstitute the plots for residential buildings and to reserve lands
for public purposes. Reconstituted plots are allotted to the land-
holders. The reconstituted plots having regard to the exigencies of
the scheme need not be of the same dimensions as the original land.
31
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
Their shape and size may be altered and even the site of the
reconstituted plot allotted to an owner may be shifted. The Town
Planning Officer may lay out new roads, divert or close existing
roads, reserve lands for recreation grounds, schools, markets, green
belts and similar public purposes, and provide for drainage,
lighting, water-supply, filling up or reclamation of low-lying,
swamp or unhealthy areas or leveling up of land so that the total
area included in the scheme may conduce to the health and well-
being of the residents. Since the Town Planning Scheme is intended
to improve the sanitary conditions prevailing in a locality, the
owners of plots are required to maintain land open around their
buildings. The object of the scheme being to provide amenities for
the benefit of the residents generally, the area in the occupation of
the individual holders of land is generally reduced, for they have to
contribute out of their plots, areas which are required for
maintaining the services beneficial to the community. It was further
observed that in this process the whole or part of a land of one
person, may go to make a reconstituted plot, and the plot so
reconstituted may be allotted to another person and the lands
needed for public purposes may be earmarked for those purposes. It
was further held, in light of Section 53 of the Bombay Act, that it
does not provide that the reconstituted plot is transferred or is to be
deemed to be transferred from the local authority to the owner of
32
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
the original plot. In terms Section 53 provides for statutory re-
adjustment of the rights of the owners of the original plots of land.
There is no vesting of the original plots in the local authority, nor
transfer of the rights of the local authority in the reconstituted plots.
(27) On the above analogy, as we have said in case of acquisition
by agreement, there is no question of transfer of the title nor there is
vesting of the land in the RDA. It is a simple re-adjustment of the
rights of the owners of the original plots of land, which is not
prohibited under any provisions. When the source of such
acquisition is clearly provided u/S 56, there cannot be a challenge
on this account particularly by persons (appellants herein) whose
lands have not been acquired in the above manner. We have been
told by respondent’s counsel that all the private land owners except
the above 13 appellants have agreed for acquisition by agreement
and land acquisition proceedings under the Act 1894 have been
initiated against the appellants. It was also stated by them that now
Hemant Chhatri (appellant in W.A. No. 381 of 2013) has also
entered into an agreement with the RDA. In light of the above facts
and circumstances, we find no force in the said arguments and the
same has to be rejected.
33
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
(28) Learned counsel for the appellants have next contended that
the RDA has not taken development permission u/S 28 of the
Adhiniyam, therefore, the entire development scheme vitiates.
Reliance was placed on Sections 27 & 28.
(29) The argument is totally misconceived. Section 27 talks about
the development undertaken on behalf of Union or State
Government. It provides that when the Union Government or the
State Government intends to carry out development of any land for
the purpose of its departments or offices or authorities, the officer-
in-charge thereof shall inform in writing to the Director the
intention of the Government to do so, giving full particulars thereof,
accompanied by such documents and plans as may be prescribed
atleast thirty days before undertaking such development. Likewise
Section 28 provides for Development by Local Authority or by any
authority constituted under the Adhiniyam, 1973. According to this
Section, where a Local Authority or any authority specially
constituted under this Adhiniyam intends to carry out development
on any land for the purpose of that authority, the procedure
applicable to the Union or State Government under section 27 shall,
mutatis mutandis, apply in respect to such authority. Thus, these
provisions talk about the development of land for the purpose of
concerned authorities/departments/officers thereof. In the instant
34
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
case, though RDA is an authority for the purpose of Section 28, but
the development scheme has not been prepared for the purpose of
the RDA. Therefore, the provisions of these Sections would not
apply to the present scheme/acquisition. In the instant case, the
provisions of Sections 49 & 50 would be applicable which are self
contained in all respects giving a clear mode of acquisition for
public purpose and any town development scheme prepared u/Ss
49 & 50 would not be subject to the permission referred to in
Sections 27 & 28 because the nature of scheme and acquisition under
these two sections are quite different than that reflected in Sections
27 & 28.
(30) It was next contended by the counsel for the appellants that
amendment brought in Section 50 enacting a new sub-section i.e. 50
(8) without assent of the President is illegal and incompetent,
therefore, the amending provisions are ultra vires and actions taken
under the said provisions vitiate.
(31) The said argument was vehemently opposed by the counsel
for the respondents on the ground that the amending provisions
were not challenged in any writ petition; the said argument was
never raised before the single Bench; even there are no averments in
the memo of appeals relating to vires of Section 50 (8), therefore, the
35
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
said argument cannot be entertained and the validity of the
amending provisions cannot be examined in these appeals.
(32) State Government vide C.G. Act No. 22 of 2010 brought
amendment and made following provisions with effect from
6.9.2010 :-
50 (8) (i) Where a town development scheme has
come into operation, all lands required by the Town &
Country Development Authority for the purposes specified in
following clauses :-
(a) Layout of new streets or roads, construction,
diversion, extension, alteration, improvement and
closing up of streets and roads and
discontinuance of communications, etc.;
(b) Drainage, inclusive of sewerage, surface or
sub-soil drainage and sewage disposal;
(c) Lighting;
(d) Water supply;
shall vest absolutely in the Town and Country Development
Authority free from all encumbrances.
(ii) Nothing in sub-section (i) shall affect any
right of the owner of the land vesting in the appropriate
authority under that sub-section.2
(33) The vires of the above amendment was not challenged by the
appellants in their writ petitions. No relief relating to such
declaration was claimed by them. There is no pleading in the writ
36
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
petitions challenging the constitutional validity of the said Act on
any ground. Even there is no averment in the memo of appeals. It is
for the first time the arguments have been advanced by the counsel
for the appellants raising singular contention that the assent of
President was not taken for the Amending Act and the Amending
Act was brought with the assent of the Governor.
(34) Let us firstly remember the basic principles that the
presumption is always in favour of the constitutionality of an
enactment, and the burden is upon person who challenges the
constitutionality to show that there has been a clear transgression of
the constitutional principles. Thus the burden of proving all the
facts which are requisite for the constitutional validity is upon the
person who challenges the constitutionality (Vide: Chiranjit Lal
Chowdhuri –Vs- Union of India, AIR 1951 SC 41; Cf. Rao Shiv
Bahadur Singh –Vs- State of U.P., AIR 1953 SC 394 and Ramarao –
Vs- All India Backward Class Bank Employees Welfare
Association, AIR 2004 SC 1459). Where the constitutional validity of
a provision is not under challenge, the Court will have to proceed
on the basis that the same is intra vires and interpret the same as
such (Vide: Molar Mal –Vs- Kay Iron Works (P) Ltd., (2000) 4 SCC
285).
37
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
(35) Pressing the above argument by counsel for the appellants
attracts the doctrine to collateral challenge. In a collateral challenge
the exercise is not the invalidation of a decision, but only to
ascertain whether the decision exists in law at all and rely upon
incidents and effect of its “non-existence”. Doctrine of collateral
challenge will not apply to a decision which is valid ex-hypothesi and
which has some presumptive existence, validity and effect in law.
Such a decision can be invalidated by the right person in right
proceedings brought at the right time. It is only a nullity stemming
from lack of inherent jurisdiction or a proceeding that wears the
brand of invalidity on its forehead that might afford a defence even
against enforcement (Vide: Pankaj Bhargava and Another –Vs-
Mohinder Nath and Another, (1991) 1 SCC 556). Here the matter
relates to existence of an Act which is ex facie valid unless declared
invalid in a proper proceeding on proper foundation laid down by
the concerned party and the same principle would apply. We are of
the opinion that no law which is valid ex facie carrying presumption
of its correctness and validity can be invalidated in an incidental
proceeding in light of the Doctrine of collateral challenge. That
apart, there are restrictions on the appellate jurisdiction when
pleadings etc. have never been raised. Thus, we do not wish to
express our views on the above argument on merit and we declined
38
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
to entertain the said argument raised for the first time in these intra
court appeals without any foundation for the same.
(36) It was next contended that Environmental Clearance was not
obtained from the appropriate Authority. It was contended that
looking to the area of the project; Environmental Clearance was
required from the Central Government.
(37) Mr. Desai has contended that it was a project falling under
Category B-1 project; therefore, Environmental Clearance was
required from the State Level Environment Impact Assessment
Authority (SLEIAA), which was duly obtained.
(38) A perusal of the record would show that Environmental
Clearance was obtained from SLEIAA vide its order dated
25.01.2011. The notification issued by the Ministry of Environment
and Forest (MOEF) dated 14.09.2006, which is not disputed by both
the parties, two categories of projects were formed namely-
Category ‘A’ and Category ‘B’. For Category ‘A’ project, clearance
has to be obtained from the Central Government, whereas, for
Category ‘B’ project, it has to be obtained from the SLEIAA. In
classification, the instant project is covered under Clause VIII (b) of
the notification as it covers an area of more than 50 hectares for
39
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
Township and is a Category B-1 project. Thus, it cannot be said that
Environmental Clearance was not obtained from the appropriate
Authority or it was a case in which, Environmental Clearance from
the Central Government was required. Moreover, we find that the
Central Government, in its return filed in one of the Writ Petitions
(WP(C) No.6040/2011), has stated on oath that the project has been
duly cleared by appropriate Authority. In view of the above facts
situation and particularly in the light of the notification dated
14.09.2006 as also in the light of categorical admission of the Central
Government, it cannot be held that proper Environmental Clearance
was not obtained from the concerned Authority.
(39) It was also contended in Writ Appeal No.393/2013 that the
land of the appellants, which is situated at a distance of 1.5 km from
the remaining area of the project, has been included with malafide
intention. This point has been dealt with by the writ Court vide para
48 of the judgment. The writ Court has mentioned factual aspects in
this paragraph, including that the appellants’ land is connected with
the Scheme area through the Highway. It has been observed by the
writ Court that the cluster of land in question, which is covered
under Sector 14-B and 15-C of the sanctioned lay-out plan of the
Scheme, belongs to as many as 19 land owners. Thus, it was not a
40
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
case that only the land of the appellants, situated at a distance of 1.5
km, has been singled out for inclusion in the Scheme.
(40) That apart, we also note that even in the draft scheme, the said
area was shown and no objection was filed to the effect that this area
was included in the draft scheme malafidely or intentionally as it is
now contended by the appellants.
(41) In Babulal Badriprasad Verma Vs. Surat Municipal
Corporation (2008) 12 SCC 401, it was held that if no objection was
raised before the Committee in respect of the draft scheme, the
petitioners are estopped from raising such contentions before the
writ Court. It is on these grounds, the writ Court has not
entertained the said objection. We have carefully gone through the
contents of the record. Since no such objection was raised by the
appellants before the appropriate Authority, they would be
estopped from challenging the inclusion of their land on the
grounds of malafide, which they have raised for the first time before
the writ Court and the writ Court has rightly refused to entertain
their grounds.
41
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
(42) Learned counsel for the appellants have also contended that
the RDA was not competent to sale the developed plots, which they
have kept in ‘land pool’.
(43) The contention of the respondents is that 10% developed plots,
which have been reserved as ‘land pool’, have to be sold because the
Committee has taken a decision not to recover the amount of
incremental development contribution. Their argument was that
the Authority can only generate the amount from sale of the land,
which are kept in ‘land pool’, for the purpose of providing
infrastructural facilities. We note from the Scheme that no
development cost is being incurred from the land owners and the
same is being borne by the Authority. The infrastructural facilities,
which are being provided, are, roads, drainage, water supply,
electricity, recreation centres, Bus stand and almost all other
amenities, which are required for a well-developed residential area.
(44) The question is whether the RDA was competent to do so and
if it can do so, whether the quantum of ‘land pool’ is reasonable?
(45) Section 49 (supra) provides that a town development scheme
may make provision for various matters included therein. Clause
(i) of Section 49 clearly provides that the Scheme may make
42
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
provisions for acquisition, development and sale or leasing of land
for the purpose of town expansion. Clause (iii) further provides for
acquisition and development of land for public purposes such as
housing development, development of shopping centres, cultural
centres and administrative centres. Likewise, Clause (viii) provides
for reconstruction of plots for the purpose of buildings, roads,
drains, sewage lines and other similar amenities. A conjoint reading
of these Clauses of Section 49 and various other Clauses, would
show that there is noting in the Act which may prohibit an
Authority to sale or lease out the land which may include a
developed land under the land development scheme. On the
contrary, the provisions appear to be enabling. Thus, there can be
hardly any doubt in saying that the Authority has jurisdiction to
sale the developed land.
(46) So far as reasonableness of 10% is concerned, we may note
from the Scheme that there are provisions for city park, regional
park, water bodies, wide roads and lanes, internal sector roads,
community open spaces, graveyard/cremation grounds, Bus stand,
health centres, Schools and commercial-belts. (See: Table-II supra).
If no incremental development contribution is being taken from the
land owners and the Authority has decided to keep only 10% of
developed land in ‘land pool’ to meet the infrastructural
43
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
development cost, the same cannot be said to be unreasonable and
unjust so as to interfere by this Court.
(47) For the foregoing reasons, we find no substance in these
appeals. The appeals are liable to be dismissed and are hereby
dismissed.
(48) No order(s) as to cost(s).
JUDGE JUDGE
Vatti
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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
HEAD LINES
1. Doctrine of collateral challenge - No law which is valid
ex facie carrying presumption of its correctness and validity
can be invalidated in an incidental proceeding without laying
down any foundation.
1- lkaEikf’oZd pqukSrh dk fl)kar & dksbZ dkuwu tks izR;{kr% oS/kkfud gS] vkSj
ftlds mfpr o oS/k gksus dh mi/kkj.kk dh tkrh gS] fdlh vuq”kkafxd izfdz;k esa
fcuk fdlh vk/kkj ds voS/kkfud ?kksf”kr ugh fd;k tk ldrk A
2. Where the constitutional validity of a provision is not under
challenge, the Court will have to proceed on the basis that the
same is intra vires and interpret the same as such.
2- tgka fdlh izko/kku dh laoS/kkfudrk dks pqukSrh ugh nh xbZ gS ogka U;k;ky;
bl mi/kkj.kk ij pysxh dh mDr izko/kku iw.kZr% laoS/kkfud gS ,oa mls
mlh :Ik es O;k[;k djsxh A
B.O.
(R.K. Vatti) Private Secretary
45
W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013
HIGH COURT OF CHHATTISGARH, BILASPUR
Coram: Hon’ble Shri Sunil Kumar Sinha &Hon’ble Shri Inder Singh Uboweja, J J.
Writ Appeal No. 379 of 2013
Bulamal Chhatri
Vs.
State of Chhattisgarh & Others&
(Connected W.A. Nos. 380; 381; 382; 389 & 393 of 2013)
JUDGMENT
For consideration
Judge /05/2014
Hon’ble Shri Justice Inder Singh Uboweja
Judge /06/2014
Post for Judgment: /06/2014
Judge /06/2014
46