HIGH COURT OF CHHATTISGARH, BILASPUR SB: HON'BLE …highcourt.cg.gov.in/Afr/courtJudgementandAFR/2013/... · HIGH COURT OF CHHATTISGARH, BILASPUR SB: HON'BLE PRASHANT KUMAR MISHRA,

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HIGH COURT OF CHHATTISGARH, BILASPUR

SB: HON'BLE PRASHANT KUMAR MISHRA, J

WRIT PETITION (C) No. 6280 of 2010

PETITIONERS Balaji Real Estate & others

Vs.

RESPONDENTS State of Chhattisgarh and others


PETITIONERS Chinmay Builders Pvt. Ltd. & others

Vs.



PETITIONER Raveendra Banjare

Vs.


WRIT PETITION (C) No.7158 of 2010

PETITIONERS Brijmohan Singh & others

Vs.


WRIT PETITION (C) No.759 of 2011

PETITIONER Rajendra Shankar Shukla & others

Vs.

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PETITIONER Vivek Chopda

Vs.



PETITIONER Smt. Suraj Kali Gupta

Vs.



PETITIONER Shivji Tiwari

Vs.



PETITIONER Smt. Shyam Bai Sahu

Vs.



PETITIONER Jaysingh Devangan

Vs.


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PETITIONER Devlal Sahu

Vs.



PETITIONER Ramesh Chandra Maurya

Vs.



PETITIONER Laxman Prasad Chandrakar

Vs.



PETITIONER Ramjeewan Vishwakarma

Vs.



PETITIONER Hemant Kumar Chhatri

Vs.


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PETITIONER Pawan Chhatri

Vs.



PETITIONER Bulamal Chhatri

Vs.



PETITIONER Deepak Kumar Chhatri

Vs.



PETITIONER Smt. Priya Chhatri

Vs.



PETITIONERS Smt. Jayvanti Chhatri & others

Vs.


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PETITIONER Rawal Singh Chawla

Vs.



PETITIONERS Anil Kumar Prathwani & others

Vs.



PETITIONERS Vijay Rajani & others

Vs.


WRIT PETITIONS UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA

-----------------------------------------------------------------------------Appearance on behalf of the petitioners:

Shri Ravish Chandra Agrawal, Sr. Advocate with Shri Shankalp Kochar, Smt. Kiran Jain & Shri Saurabh Dangi counsel for the Petitioners in W.P(C). Nos. 6280/2010, 6282/2010 & 1217/2012.

Shri N.K. Vyas counsel for the Petitioners in W.P(C).Nos. 6471/2010, 7158/2010, 296/2012, 298/2012, 437/2012, 438/2012, 439/2012, 460/2012, 461/2012, 462/2012, 799/2012,800/2012,801/2012, 802/ 2012, 803/2012, 804/2012, 893/2012.

Shri P.S. Koshy, Shri Jitendra Pali, Rohit Shukla and Shri Varun Sharma, counsel for the petitioner in W.P(C).No.759/2011.

Shri B.P. Sharma, M.L.Sakat, Sameer Oraon, counsel for the petitioner in W.P.No.2985/2011.

Ku. Sharmila Singhai, counsel for the petitioner in W.P(C). No.5847/2011.

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On behalf of the respondents:

Shri Prashant G. Desai, Sr. Advocate with Shri Rutul Desai and Shri Kishore Bhaduri, Additional Advocate General for the State.

Miss. Pinky Anand, Sr. Advocate with Shri Sumesh Bajaj and Shri Rajesh Ranjan, counsel for the Respondent RDA.

Shri H.B. Agrawal, Sr. Advocate with Shri Pankaj Agrawal, counsel for the respondent Municipal Corporation, Raipur.

Shri Santosh Kumar Tiwari, Shri Vivek Shrivastava and Shri H.S. Ahluwalia, Standing Counsel for the Union of India.

Shri Manoj Paranjpe and Shri Sudeep Agrawal, counsel for the respective interveners in W.P(C). No.6282/2010, 6280/2010 & 6471/2012.

-----------------------------------------------------------------------------JUDGMENT

(15.04.2013)

1. In this batch of writ petitions filed under Article 226 of the

Constitution of India, the petitioners have sought for quashment of

the Kamal Vihar Town Development Scheme No.4 (hereinafter

referred to as the “Scheme/TDS”) planned, developed and in the

process of execution by the Raipur Development Authority (in short

“RDA”). In some petitions, the petitioners have made alternative

prayer seeking issuance of direction to the respondents to exclude

the lands belonging to the petitioners from the said “Scheme”.

2. ABOUT THE SCHEME : The respondent RDA has

planned the Scheme comprising of 647.84 hectares of land situated

at villages Dunda, Boriya Khurd, Tikrapara, Deopuri and

Dumartarai (hereinafter referred to as the “subject villages”) within

the Raipur Planning Area to construct a modern township for the

purpose of planned development of the growing city of Raipur, the

capital of State of Chhattisgarh. The Scheme has been formulated

under sections 49 & 50 of the C.G. Nagar Thatha Gram Nivesh

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Adhiniyam, 1973 (henceforth “the Adhiniyam/Act, 1973”) and the

RDA being an authority constituted under the said Act is

implementing the said Scheme.

3. As per the brochure published by RDA (Annexure R/3-A) the

Scheme will be spread over an area admeasuring 647.84 hectares =

1600 acres consisting of 15 sectors with estimated cost of

development of infrastructure assessed at Rs.815.38 crores. Under

the Scheme, the State Government would hand-over Government

land falling within the Scheme area to the RDA and private lands

falling within the Scheme area shall be taken-over by obtaining

consent of the land owners or by acquisition u/s 56 of the Act.

Such land owners shall be returned the developed reconstituted

plots depending upon size of their original plot. However, RDA shall

not charge any contribution cost/incremental cost from the land

holders so that financial burden is not shifted on the land-holders.

The township would have 4 lane main road of 75

meters/45mts/30mts width and two lane roads of 24 mts/18 mts,

width along-with other infrastructure like street lighting, 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 with

further facility of small commercial area in every sector. It will also

have recreational facility over 256 Acres; picnic spots and water

sports on 229 acres pond at Boriyakhurd; play ground, city park

over 95 acres and other parks over 62 acres. Separate areas have

been reserved for educational institutions, health services, office

buildings, cultural center, banks, post office etc., Initially RDA

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shall obtain loan for meeting the expenditure on infrastructure

development which shall be later on recovered by selling 10% plots

to public at large. As per the status report of the project, submitted

along-with written synopsis of RDA, until 31st January 2013, a

sum of Rs.182 crores approx. has already been spent on

infrastructure development.

4. Out of total number of 5095 land owners who are covered

within the Scheme, initially only 685 have not consented for

participation, therefore, the land belonging to these persons have

been subjected to acquisition u/s 56 of the Act. However, out of

these 685 land-owners, 150 more land owners have accorded

consent to the Scheme at subsequent stages and 11 of them have

already received compensation. As against 5095 land owners, only

39 land owners have preferred writ petitions which are disposed of

by this common order. According to the learned counsel for the

RDA, as against the Scheme area of 647.84 hectares, the area

belonging to 39 petitioners covers an area of about 20 hectares only.

GROUNDS OF CHALLENGE

5. The petitioners have assailed the validity of the scheme on the

grounds that the provisions contained in Section 23-A of the Act

has been violated inasmuch as a Town Development Scheme is

formulated to implement the master plan whereas in the present

case the master plan has been modified after preparation of the

Scheme. Another facet of this argument has been raised on

submission that modification of lay out plan/development plan

after finalization of the Scheme has vitiated the entire

proceedings and that after modification of the development plan,

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the earlier scheme stood amended necessitating de novo steps

commencing from Section 50(1) to Section 50(7) and in absence of

such proceedings having been drawn and completed, the entire

Scheme deserves to be quashed. It has also been argued that the

Scheme itself is in contravention of master plan (revised/

Punarvilokit) 2021 and further that in absence of zonal plan, a

Town Development Scheme cannot be formulated.

6. It appears, the RDA resolved to formulate the Scheme on

21.03.2006 and requested the State Government for change in land

use of such lands which are presently shown to be falling under

‘agricultural use’. The RDA thereafter wrote a letter to the Joint

Director, Town and Country Planning (T&CP) for providing the land

use of certain Khasra Numbers. A meeting of the Sarpanchs of the

affected villages was convened on 01.06.2006 wherein all the

Sarpanchs consented to the Scheme. The RDA thereafter requested

the State Government for communicating the land use so that steps

u/s 50 can be taken. In this communication as well as in the

subsequent communication dated 20th September 2006 the words

‘integrated township’ is mentioned. The State Government by its

letter dated 20.09.2006 sought information from RDA on several

aspects of the Scheme like the area, population and the affected

agricultural lands under the Scheme. This was answered by RDA on

14.11.2006. The RDA again requested the State Government for

change in land use by its letter dated 03.05.2007 and thereafter on

04.05.2007, a request was made to Hon’ble Minister seeking

permission for publication of notices u/s 50 and change of land use

u/s 23-A of the Adhiniyam. RDA by its letter dated 15.06.2007

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again requested for permission with an alternative proposal of 4

different schemes of about 100 acres each. On 25.01.2008, State

Government granted permission for publication of the Scheme u/s

50 and to complete the Scheme within 5 years. The RDA in turn

informed the State Government that the Scheme has been prepared

in accordance with the land use notified under Raipur Development

Plan 2021 (in short “RDP 2021”). The Board of Directors of RDA

passed a resolution; made a declaration u/s 50(1) and the

notification dated 26.05.2009 u/s 50(2) was published in official

gazette on 05.06.2009.

7. When the notification u/s 50(2) was thus published, RDA

convened a meeting of its Board of Directors on 14.07.2009 for

increasing the area under the Scheme upto additional extended

area of 1900 acres and to seek permission from the State

Government u/s 50(1) followed by letter addressed to the State

Government on 20.07.2009 interalia mentioning that after spot

inspection, it was felt that the Scheme deserves to be extended for a

larger area so as to give full effect to the RDP 2021 for curtailing

scattered and haphazard development of the area. The RDA’s

intention to implement the Scheme by reconstruction of plots and

handing-over proportionate developed plots to the land holders was

also mentioned in the letter. The state Government granted

permission u/s 50(1) to the extended Scheme with certain

conditions by its letter dated 10.08.2009 and accordingly a

declaration u/s 50(1) was made by RDA by circulation amongst

members and the amended notification dated 25th August, 2009

was published in the official gazette dated 04.09.2009.

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8. The RDA thereafter decided to publish the draft scheme in its

meeting dated 05.11.2009 and thereafter notification dated

09.11.2009 was published in the official gazette dated 20.11.2009

under Section 50(3) inviting objections/suggestions from the

affected persons to be submitted within 30 days. In accordance with

Section 50(5) of the Act, RDA constituted a 3 member Committee for

considering the objections/suggestions on 30.11.2009 and the

Committee decided to afford personal hearing to the objectors for

which notices were issued by Certificate of Posting, Courier Service,

Mobile SMS etc. Hundreds of objections were received and the

documents filed by the RDA demonstrate that notices were issued

to different set of objectors for appearance on different dates and

thereafter they have been dealt-with and disposed of. The

Committee in its meeting dated 09.04.2010 decided to consider

even those objections which were received after the stipulated time

of 30 days.

9. The RDA, thereafter, requested the State Government by its

letter dated 15.04.2010 for change of land use in the RDP 2021.

The State Government by its letter dated 20.05.2010 in turn

directed the RDA, to submit proposal for modification of RDP 2021

as required u/s 23-A of the Act. By yet another letter dated

28.05.2010 the State Government informed the RDA that its

proposal for modification of RDP 2021 shall be considered after the

Committee constituted u/s 50 of the Act approves the Scheme. In

its meeting dated 08.06.2010, the Committee submitted its proposal

u/s 50(6) for consideration by the Board of Directors of RDA, which

was later on approved.

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10. In its meeting dated 21.06.2010 and 22.06.2010, the Board of

Directors of RDA approved the proposal recommended by the

Committee and decided to publish the final draft of the Scheme as

required u/s 50(7) of the Adhiniyam. In this meeting the RDA

inter-alia approved the change of the name of the Scheme from

“Kamal Vihar Integrated Township Scheme, Dunda” to “Town

Development Scheme No.4 Kamal Vihar”; reconstitution of plots

reserving 15% reconstituted plots for Economically Weaker Sections

(EWS); to make proposal for modifying the land use of such Khasra

numbers of which major part of area falls under residential use and

the remaining for the agriculture use so that the entire Khasra will

have residential land use.

11. It was also decided by the Committee that such land holders

whose lands are situated on new Dhamtari Road or old Dhamtari

Road will be allotted reconstituted plots on the main road and

similarly other land holders will be allotted reconstituted plots at or

near the same place or near to the place where their original lands

were located and if this is not possible then reconstituted plots will

be allotted in the same village. The final draft of the Scheme was

thereafter sent to the State Government for approval.

12. The RDA by its letter dated 14.07.2010 suggested some

minor modifications in the land use and submitted a proposal for

modification in RDP 2021 under Section 23-A of the Act. The

changes in the land use were with respect to (i) Change of place of

regional park without changing total area under the said land use;

(ii) some land of few Khasra numbers of villages Deopuri,

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Dumartarai and Dunda have been shown to be under residential

use in RDP 2021, however, the remaining part of the same Khasra

number have been marked for agricultural use, therefore, to make it

workable the entire area of few such Khasra numbers be made for

residential use; (iii) some area marked for educational use in RDP

2021 has been reserved for residential purpose, therefore, to make

it workable same extent of area reserved for educational purpose

under the scheme be modified which does not affect the total area

under the educational land use in RDP 2021 as only the location is

changed.

13. By notification dated 05th July 2010 published in

Chhattisgarh gazette dated 16th July, 2010, the final Scheme was

published as required u/s 50(7) of the Act.

14. The Joint Director, Town and Country Planning (T&CP),

Raipur, submitted its report with respect to the proposal for

modification submitted by RDA to opine that one particular Khasra

Number is already entered in the revenue records as Boriyakhurd

Tank, therefore, the said area can be treated as land for recreation

and as such, there would be no requirement of changing the land

use of some residential land to recreation land. The other proposal

for changes submitted by RDA was approved in terms of the

Schedule. The said area for which changes were required was for

approximately 10 hectares of land which is less than 2% of the total

Scheme area of 647.84 hectares. In fact, as against the proposal for

modification covering 33.38 hectares of land, the modification was

approved only for about 10 hectares of land.

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15. The State Government published notice for modification u/s

23-A(i) inviting objections. The notices were published in two

newspapers on consecutive days of its publication and when no

objections were received, the modifications were approved u/s 23-

A(2) of the Adhiniyam, accordingly modifying the RDP (Revised)

2021 making the modified plan as part of the RDP 2021.

16. Learned counsel for the petitioners would urge that in view of

the judgment of the Supreme Court in Indore Vikas Pradhikaran

Vs. Pure Industrial Coke and Chemicals Limited (2007) 8 SCC

705, the modification in the master plan i.e., RDP 2021 after

finalization of the Scheme is wholly illegal inasmuch as the Scheme

is prepared in terms of the master plan and not vice versa.

In the matter of Indore Vikas Pradhikaran (supra), the

State Government issued a notification under sub-section (i) of

Section 13 of the Adhiniyam constituting Indore Planning Area

including 37 villages therein, however, two villages namely Bicholi

and Karadiya were not included in the planning area itself. Despite

the said fact that the said villages are not included in the planning

area, the Development Authority declared its intention to frame

Town Development Scheme for those two villages along-with other

areas and the building plan submitted for sanction by the

petitioners were rejected on the ground that a Town Development

Scheme is to be prepared for the area. The High Court struck down

the declaration under sub-section (2) of Section 50 of the Act with

respect to the said two villages on the ground that unless the

development plan for the area is published, the draft development

scheme cannot be finalized by the Town and Country Development

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Authority u/s 50(2) of the Act. This judgment of the High Court

was upheld by the Supreme Court. Thus in the said case, firstly,

the entire Scheme was not quashed but it was quashed for only

those two villages which were not included in the planning area

itself and secondly that before initiation of preparation of a Scheme

for any area, there has to be a development plan for the area.

In the present case, the subject villages were already included

in the RDP 2021 and it is not a case where the areas were not at all

included in the planning area of RDP 2021. The modification made

u/s 23-A became part of the originally formulated RDP 2021 so that

the land included in few Khasras covering about 10 hectares of

land, of which, major part is residential in the RDP 2021 be

modified and the land covered in the entire Khasra Number be

covered under residential land use. The said area of 10 hectares is

less than 2% of the Scheme area. It will not be out of place to

mention that none of the petitioners own any land of which the land

use has been modified from agriculture to residential. It is possible

that the land owners have not approached this Court because the

change in land use for remaining part of their Khasra number from

agriculture to residential benefits them and in the event the said

modification u/s 23-A(2) of the Act is nullified, the sufferer would be

the land owner and not the petitioners.

Be that as it may, it is not a case where there was no

development plan at all for the subject khasra numbers as in the

case of Indore Vikas Pradhikaran (supra), therefore, the case is

clearly distinguishable on facts.

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17. The petitioners have further argued that once the master

plan is modified, the entire steps under Section 50(1)(2) and

section 50(7) have to be taken de novo as all the previous actions

became nullified when the RDP itself has suffered modification.

18. The details of the procedure discussed above have made it

clear that the modification of the master plan is with respect to few

Khasra numbers only. It is not a case of a new master plan

altogether. The modification in the master plan affects less than 2%

of the area. None of the land-holders whose lands have suffered

change in ‘land use’, after modification of the master plan, has

approached this Court. With these facts in mind, it is to be seen

that u/s 23-A, the modification made in the development plan shall

be an integrated part of the revised development plan meaning

thereby that the modification would relate back to the date of first

publication of RDP (Revised) 2021 when it was first notified on

07.04.2008. Section 23-A(1) makes the modification an integral

part of the revised development plan so as to avoid taking steps de

novo and it is precisely for this reason sub-section (3) of Section 23-

A provides that Section 18 regarding publication of approved

development plan and Section 19 regarding sanction of development

plan will not be applicable for modification made by the State

Government. More importantly, it cannot be lost sight of the fact

that the modification in the master plan has not been challenged in

the writ petition nor any of the petitioners have preferred any

revision before the revisional authority u/s 51 of the Act to

challenge the modification of the development plan.

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19. The petitioners have further assailed the Scheme on the

ground that modification of master plan is not in conformity

with the provisions contained in Section 23-A(1) as no ‘urgent

public purpose’ is involved and the procedure prescribed u/s

23-A(2) has not been followed. To buttress their submission, it

has been urged that housing and planned development of a city is

not an ‘urgent public purpose’ and in any case the preparation of

the scheme having commenced in 2006, there was no ‘urgent public

purpose’. Learned counsel for the petitioners have compared

provisions contained in Section 17 of the land Acquisition Act and

Section 23-A of the Adhiniyam and have thereafter referred to

Supreme Court decisions in the matters of Devender Kumar Tyagi

and others Vs. State of Uttar Pradesh and others (2011) 9 SCC

164; Devendra Singh and others Vs. State of Uttar Pradesh

and others (2011) 9 SCC 551; Radhy Shyam (Dead) through

LRS and others Vs. State of Uttar Pradesh and others (2011) 5

SCC 553.

20. Responding to the argument Shri Desai, learned Senior

Advocate appearing for the State and Ms. Pinki Anand, Sr. Advocate

for the RDA would refer to a Division Bench Judgment of M.P. High

Court in the matter of Jaganath Dhaniram Jindal and another

Vs. State of M.P., and others, 2003 (1) MPLJ 152 to put forth

their case that there can be no comparison between Sections 4 and

17 of the Land Acquisition Act with Section 23-A of the Adhiniyam

as they operate in two different spheres and it does not warrant any

kind of fusion.

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21. The phraseology ‘urgent public purpose’ has not been defined

in the Act and although the words ‘public purpose’ has been defined

under the Land Acquisition Act 1894 (for short Act, 1894) and

urgency clause is invoked u/s 17 of the Act, 1894, the two

enactments operate in different fields. Section 23-A is about

modification of development plan and not per-se for acquisition of

the land. U/s 54 of the Adhiniyam, the Scheme should commence

implementation within two years or should complete its

implementation within 5 years from the date of notification, failing

which, the scheme would lapse. Making a provision for time bound

implementation and completion of Scheme makes it imperative that

when development plan is modified on the request of development

authority, it is for the urgent public purpose. Under the explanation

to Section 23-A, creation, development and maintenance of human

settlement or any part thereof has been included within the

meaning of ‘public purpose’ meaning thereby that anything

concerning human settlement is a ‘public purpose’.

22. In course of argument, learned State Counsel has referred to

the Hindi text of the Adhiniyam wherein the word “Atyavashyak”

has been used in place of ‘urgent’. According to them, the word

‘Atyavashyak’ would mean “most important public purpose” and not

“urgent public purpose”. In this context, a Full Bench Judgment of

M.P. High Court in the matter of Gulabchand v. State of M.P.

1982 JLJ 170 and other decisions in M/s. Govindram Ram

Prasad Vs. Assessing Authority (Sales Tax) AIR 1958 MP 16 and

Satya Bhan Singh Jadon Vs. State of M.P., and another 1997

(2) MPLJ can be profitably referred wherein it has been stated that

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the official language of the State being Hindi, Hindi version of the

State Act would prevail for understanding the meaning of any

provision of the Act. For all these reasons, this Court is of the

considered view that the argument regarding lack of ‘urgent public

purpose’ must fail.

23. The petitioners have harped upon the ground that the

procedure prescribed u/s 23-A(2) of the Act has not been

followed inasmuch as notices were not published continuously

for two days in the local newspapers and that modified plan was

not published along-with the newspapers publication at any

conspicuous place which is mandatory. The draft modification was

published in two daily newspapers on 05.11.2010 and 07.11.2010.

It is for this reason, the petitioners have contended that the

publication was not continuous as there was gap of one day

between 5th November and 7th November. The respondents have

stated on affidavit that 5th November 2010 was the day of Diwali

festival, therefore, there was no publication of the newspaper on

06.11.2010. According to the State and RDA, since there was no

publication at all of the newspapers on 6th November on account of

Diwali Festival, the publication of notice on 5th November and 7th

November would amount to continuous publication.

While construing the meaning of the term “continuous

service” for not less than one year as defined under Section 2(eee) of

Industrial Disputes Act, 1947, the Supreme Court in the matter of

S.E. and Stamping Works Limited Vs. The Workmen, AIR 1963

S.C. 1914, held that “continuous service” is defined in Section

2(eee) as meaning uninterpreted service, and includes service which

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may be interpreted merely on account of sickness or authorized

leave or an accident or a strike which is not illegal or a lock-out or a

cessation of work which is not due to any fault on the part of

workman.

Though in the said case, the employee had not worked for one

year i.e., for 12 months, therefore, his continuous service of 240

days was not found sufficient for the purpose of section 25-B and

Section 25-F of the I.D. Act, however, seeking guidance from the

definition of word “continuous service”, this Court would hold that

when publication of newspaper on 6th November, 2010 on account

of Diwali holiday was not in the hands of RDA and the non-

publication of newspaper was not due to fault of RDA, the

publication on 5th & 7th of November would amount to continuous

publication.

Therefore, this Court has no hesitation in accepting the

submission made by the State and RDA. Had it been a case that

the newspaper was published on 6th November and yet the notice

was not published on the said issue of the newspaper, the argument

raised by the petitioners would carry substance, however, when

there was no publication at all because of Diwali festival, it must be

treated that the notification was published on two continuous days

when the newspaper was published.

On perusal of the advertisement, it would clearly appear that

Khasra numbers, names of the villages and the proposed

modification are mentioned therein with further statement that the

map of modified plan is available for inspection and any aggrieved

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person can inspect the same. Thus the publication was in

accordance with law.

24. This Court shall now deal with petitioners challenge to the

Scheme on the alleged non-compliance of Section 50(1) to

Section 50(7) of the Act.

25. It has been urged by the petitioners that ‘declaration of

intention’ has not been made as required u/s 50(1) of the Act,

therefore, the Scheme is bad in law and there is no ‘declaration of

intention’ for the notification u/s 50(2) published on 04.09.2009

and further that Rule 18 of the C.G. Nagar Tatha Gram Nivesh

Niyam, 1975 (for short “Rules, 1975) has not been followed while

publishing notification u/s 50(2), 50(3) & 50(4) of the Act, 1973 and

the notices published are not in prescribed form as provided under

the Schedules. It has also been urged that notification u/s 50(8)

specifies the Khasra numbers only, therefore, it is not in conformity

with the provisions of law. The petitioners have also argued that

the RDA has not sought permission of the State Government

regarding inclusion of villages Boriya Khurd, Deopuri and

Dumartarai before issuing notification dated 25.08.2009 u/s 50(2)

and as such the Scheme is bad in law on this score also.

26. From the documents available on record, it would appear that

in its meeting dated 14.07.2009, the Board of Directors of RDA

decided to extend the area of the Scheme and pursuant thereto the

RDA informed the State Government that under the

amended/revised proposal, the Scheme shall include lands in

villages Dunda, Boriyakhurd, Tikrapara, Deopuri and Dumartarai

spreading over almost 2300 acres (400 acres originally planned plus

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1900 acres extended area). Responding to this proposal, the State

Government granted permission on 10.08.2009, therefore, the

argument that no permission has been granted for including

villages Boriyakhurd, Deopuri and Dumartarai is contrary to record

and thus sans substance.

27. Similarly, pursuant to the State Government’s permission

dated 10.08.2009, RDA declared its intention to formulate the

Scheme and publish the draft as required u/s 50(2) of the Act.

The Board of Directors declared this intention of RDA on

20.08.2009 by circulation and thereafter the modified/amended

notification dated 25.08.2009 was published in the Chhattisgarh

Gazette dated 04.09.2009. Thus it cannot be said that there was no

‘declaration of intention’ before issuing the amended notification.

So far as it relates to argument regarding absence of publication of

‘declaration of intention’, it is to be seen that sub-section (1) of

Section 50 provides that the Development Authority may, at any

time, declare its intention to prepare a Town Development Scheme,

however, it does not provide for publication of declaration and no

form is prescribed under the Rules, 1975 for issuance of notice to

declare its intention.

28. On a conjoint reading of sub-sections (1) & (2) of Section 50 of

the Act, 1973 along-with Rule 18 of the Rules 1975, it emerges that

in fact, the declaration of intention as mentioned in sub-section (1)

is to be published in the official gazette under sub-section (2) and it

is precisely for this, Rule 18 makes it obligatory for the Development

Authority to publish a notice under sub-section (2) of Section 50 in

Form XIII declaring the intention of making the Scheme. In other

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words, what is to be published is the declaration as required under

sub-section (2) of Section 50 and not under sub-section (1) of

Section 50. The argument raised by the petitioners on this account

is not supported by the provisions of law, therefore, it fails.

29. The first notification under sub-section (2) of Section 50 was

published on 05.06.2009 and prior to that it was also published in

the newspaper on 27.05.2009, however, when the boundaries were

amended/modified, a fresh notification was published in the official

gazette on 04.09.2009 and prior to that it was published in two

newspapers on 27.08.2009. The petitioners have objected to the

notice on submission that details of the area of each land-holder

have not been mentioned. In this regard, it is pertinent to mention

that the form of notice in Form-XIII prescribed under Rule 18 of

Rules, 1975 does not prescribe any such format wherein the area

of each landholder is to be mentioned. On perusal of Form-XIII, it

would appear that the Development Authority is only required to

mention the area i.e., the locality and not the area of each Khasra

Number because there is no mention under the provisions of the Act

or under the Rules or in the Form prescribed that area belonging to

each landholder shall be included in the notification. In the gazette

notification, RDA has mentioned the boundaries i.e., the outer limit

of the Scheme and in the opinion of this Court, such description of

the area for which the Scheme is to be prepared cannot be faulted

with. More over the publication of notification is with a view to

inform the residents of the locality. Most of the petitioners have

raised objection to the draft Scheme, therefore, it is not a case

where the petitioners were not aware of the preparation of Scheme

24

and because of that they failed to submit their objections. More-

over, in the notification issued under sub-section (3) of Section 50,

which was published in the official gazette on 20.11.2009 in the

manner prescribed under Form No.XIV, it was clearly mentioned

that the draft scheme is available for inspection in the office of RDA

as well as in the office of Joint Director, Town and Country

Planning, Raipur. Therefore, it cannot be said that members of the

area were not at all informed about the Scheme.

30. Another argument has been raised regarding notification

issued under sub-section (8) of Section 50 to submit that their

land has been taken-over without payment of compensation.

The Chhattisgarh Nagar Thatha Gram Nivesh Adhiniyam,

1973 was amended with effect from 16.06.2010 i.e., the date of

publication of the amendment in the official gazette, inter-alia

inserting sub-section (8) of Section 50 in the Adhiniyam. The newly

inserted sub-section provides that where a Town Development

Scheme has come into operation, all land required by the Town and

Country Planning Authority for the purposes specified in the

following clauses :

(a) Lay out 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 sewerage, surface or sub-soil drainage and sewage disposal ;

(c) Lighting;

(d) Water supply

Shall vest absolutely in the Town and Country Department Authority free from all encumbrances and further that nothing in sub-section (1) shall affect any right of the

25

owner on the land vesting in the appropriate authority under that sub-sections.

Thus the newly inserted sub-section specifically provided for

vesting of the land so that after coming into operation of the

Scheme, the Development Authority does not face any hindrance in

commencing infrastructure development activity.

On a reading of the above quoted provision contained in sub-

section (8) of section 50, it would appear that when a Town

Development Scheme has come into operation, all land required by

the Authority for the purpose specified under Clauses (a) to (d) of

Clause-1 of the said sub-section shall vest absolutely in the Town

and Country Development Authority free from all encumbrances,

however, the said vesting shall not affect any right of the owner of

land vesting in the appropriate authority under that sub-section.

The provision would mean that after the notification comes into

operation the Development Authority can commence its activity for

infrastructure development. However, any right of the land-owner

shall not be affected because of such vesting and thus the owner

would be entitled to compensation or reconstituted plot in the

manner decided by the authority. Even otherwise, this notification

has not been called in question and no prayer has been made in

any of the writ petition for quashing this notification.

For the foregoing discussion, the petitioners’ argument on

this count also deserves to be rejected.

31. The petitioners have complained that the Committee

constituted under sub-section (5) of Section 50 has not applied

its mind and while submitting the report under sub-section (6),

26

it has acted in an arbitrary manner. According to the petitioners,

their land consists of superstructure built on it and this aspect has

not been properly appreciated and the Committee has adopted pick

and choose policy while deciding the objections. In W.P(C). No.437/

2012 learned counsel for the petitioner Shri N.K. Vyas has

specifically urged that the land belonging to similarly placed person

Ms. Kanta Agrawal was excluded from the Scheme and the

petitioners’ land was not excluded even though a superstructure is

standing on the land belonging to the petitioners also.

32. The Committee appears to have undertaken mammoth

exercise and has dealt with about 2500 objections and such

objectors who appeared before the Committee were also afforded

personal hearing.

The Committee obtained report from the revenue authority

regarding density of population/construction and on the basis of

such report, the thickly populated/densely constructed areas were

excluded, however, the scattered superstructure within the Scheme

area were identified and depending upon the percentage of

construction over the plot, it was decided that if the construction is

on less than 35% of the area of the plot proposed to be allotted, the

construction would be allowed to remain intact and similarly even if

the construction is little more than 35% but the person is earning

his livelihood, the same would be allowed and in appropriate cases,

cost of the marginal extra land required to retain the construction

would be obtained from the landholder. In other cases, when the

construction is not exceeding marginally, but is much more than

35%, the same would be demolished and compensation shall be

27

granted and reconstituted plot shall also be allotted to such person.

It was also decided that till the time the land owner is able to raise

new construction on his allotted plot, he would be given alternative

accommodation.

33. With respect to the allegation that construction belonging to

one Kanta Agrawal has been excluded from the Scheme but similar

treatment has not been meted out with the petitioner of W.P(C). No.

437/2012, it has been stated that in the case of Kanta Agrawal, her

land/construction was within the densely constructed area,

therefore, it was excluded from the Scheme whereas on the land

belonging to the petitioner of W.P(C). No.437/2012, the

construction/land was not falling in a densely constructed area,

therefore, the objection was over-ruled. In the opinion of this Court,

the explanation offered appears to have substance as it is based on

report of revenue authority, therefore, it is not a case of pick and

choose but the authority has taken an objective decision depending

upon density of construction in the concerned area and the

petitioner of W.P(C). No.437/2012 has not been singled out for

discrimination. Such decision has been taken on the basis of report

submitted by the Patwari, therefore, it cannot be said that there was

non-application of mind while choosing Kanta Agrawal’s land for

exclusion or for not accepting the objection of the petitioner of

W.P(C).No.437/ 2012. Similar is the explanation offered in the

cases of petitioners Jai Singh Dewangan (W.P(C).No.438/2012);

Deolal Sahu (W.P(C).No.439/2012); Ramesh Chandra Mourya

(W.P(C) No.461/2012) and Ramjivit Vishwakarma (W.P.No.462/

2012). These petitioners have their construction in isolated and

28

scattered areas and not within the thickly populated/densely

constructed area, therefore, their objections were over ruled by the

Committee.

34. Other arguments regarding levying of contribution cost;

reserving land for Economically Weaker Sections (EWS);

allotting plot upto only 35% of the original area; not following

all the recommendations of the Committee; upgradation of plot

at higher price etc., have also been raised by the petitioners.

35. The subject enactment falls under Entry No.18 of List II and

Entry No.20 of List III of the 7th Schedule of the Constitution of

India. In Maneklal Chhotalal Vs. M.G. Makwana AIR 1967 S.C.

1373, the principle of town and country planning has been lucidly

dealt with by quoting the principles from a renowned author Lewis

Keepl and thereafter meaning of the words 'planning' in Corpus

juris Secondum” has been referred, to mean in connection with the

Municipalities, the term connotes a systematic development

contrived to promote the common interest in matters embraced

within the policy power, with particular reference to the location,

character, and extent of streets, squares, parks and to kindred

mapping and chatting. In Encyclopedia Britannica Vol.5, “City

Planning” is stated to mean : the guidance of the growth and

change of urban areas. As such, it is aimed at fulfilling social and

economic objectives which go beyond the physical form and

arrangement of buildings, streets, parks, utilities and other parts of

the urban environment. City planning takes effect largely through

the operations of the government and requires the application of

specialized techniques of survey, analysis, forecasting and design.

29

Thus, city planning may be described as a social movement, as a

Governmental function, or as a technical profession. Each aspect

has its own concepts, history and theories. Together they fuse into

the effort of modern society to shape and improve the environment

within which increasing proportions of humanity spent their lives :

the city”.

The Adhiniyam has thus been enacted to achieve the object of

city planning and is not only for acquiring the land which is

otherwise also an incidental matter but mainly for making

infrastructure facility for better living to facilitate social intercourse

at the societal level by adopting methods of colonization by

reconstruction and allotment of plots. The city planning has an

inbuilt intention of working in public interest for the benefit of

Society.

36. In the matter of MIG Cricket Club Vs. Abhinav Sahakar

Education Society and others (2011) 9 SCC 97, the Supreme

Court has held that town planning is an expert job. Para 28 of the

said judgment can be profitably referred as below :

“28. It is well settled that the user of the land is to be decided by the authority empowered to take such a

decision and this Court in exercise of its power of judicial review would not interfere with the same unless the change in the user is found to be arbitrary. The process involves consideration of competing claims and requirements of the inhabitants in present and future so as to make their lives happy, healthy and comfortable. We are of the opinion that town planning requires high degree of expertise and that is best left to the decision of the State Government to which the advice of the expert body is available. In the facts of the present case, we find that the power has been exercised

in accordance with law and there is no arbitrariness in the same.”

(Emphasis supplied)

30

In Greater Kailash Part II Welfare Assn. and others Vs.

DLF Universal Ltd and others (2007) 6 SCC 448 the Supreme

Court has held that the writ court is not entitled to sit on appeal

over the decision of the Executive Authority based on opinion of

experts.

37. While dealing with the similar provision under the Bombay

Town Planning Act, a Constitution Bench of Supreme Court in the

matter of State of Gujrat Vs. Shantilal Mangaldas and others,

AIR 1969 S.C. 634 observed 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 and the Town Planning Officer then

proceeds to reconstitute the plots for residential buildings and to

reserve lands for public purpose. The reconstituted plots are

allotted to the land-holders and the reconstituted plots having

regard to the exigencies of the Scheme need not be of the same

dimensions as the original land. 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 levelling up

of lands so that the total area included in the scheme may conduce

to the health and well being of the residents. It is further observed

that the object of the scheme being to provide amenities for the

benefit of the residents generally, the area in the occupation of the

31

individual holders of land is generally reduced, for they have to

contribute out of their plot areas which are required for maintaining

the services beneficial to the community. In such matter, it is

further stated that the cost of the scheme is to be met wholly or in

part by contributions to be levied by the local authority on each plot

included in the final scheme calculated in proportion to the

increment which is estimated to accrue in respect of each plot.

In the said matter Hon’ble the Supreme Court has further

considered the meaning of expression “reconstituted plot and its

rearrangement” and the underlying principles in the following

manner in Paragraphs 15, 16 & 17

“15. The relation between Sections 53 and 67 which have been declared ultravires by the High Court and the other related provisions may now be determined. Section 53 of the Act provides :

“On the day on which the final scheme comes into force.—

(a) All lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances;

(b) All rights in the original plots which have been re-constituted shall determine and the re-constituted plots become subject to the rights settled by the Town Planning Officer.”

The expression “reconstituted plot” is defined in Section 2(9) as meaning a plot which is in any way altered by the making of a Town Planning Scheme, and by the Explanation the word “altered” includes alteration of ownership. By Cl.(b) of Section 53 ownership in a plot belonging to a person is substituted by the ownership in the reconstituted plot: his ownership in the original plot is extinguished and simultaneously therewith he becomes the owner of a reconstituted plot subject to the rights settled by the Town Planning Officer. On the coming into force of the scheme all lands which are required by the local authority, unless otherwise determined in the scheme, by the operation of Section 53(a), vest absolutely therein free from all

32

encumbrances. The result is that there is a complete shuffling up of plots of land, roads, means of communication, and rearrangement thereof. The original plots are reconstituted, their shapes are altered, portions out of plots are separated, lands belonging to two or more owners are combined into a single plot, new roads are laid out, old roads are diverted or closed up and lands originally belonging to private owners are used for public purposes i.e., for providing open spaces, green belts, dairies etc. In this process the whole or 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.

16. The re-arrangement of titles in the various plots and reservation of lands for public purposes require financial adjustments to be made. The owner who is deprived of his land has to be compensated, and the owner who obtains a reconstituted plot in surroundings which are conducive to better sanitary living conditions has to contribute towards the expenses of the scheme. This is because on the making of a Town Planning Scheme, the value of the plot raises and a part of the benefit which arises out of the unearned rise in prices is directed to be contributed towards financing of the scheme which enables the residents in that area to more amenities, better facilities and healthier living conditions. For that purpose provision is made in Sec.65 that the increment shall be deemed to be the amount by which at the date of the declaration of intention to make a scheme, the market value of plot included in the final scheme, estimated on the assumption that the scheme has been completed, would exceed at that date, the market value of the same plot estimated without reference to improvements contemplated by the scheme. By Section 66 the cost of the scheme is required to be met wholly or in part by contributions to be levied by the local authority on each plot included in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Town Planning Officer. Section 67 provides:

“The amount by which the total value of the plots included in the final scheme with all the buildings and works thereon allotted to a person falls short of or exceeds the total value of the original plots with all the buildings and works thereon of such person shall be deducted from or added to, as the case may be, the contributions leviable from such persons, each of such plots being estimated at its market value at the date of the declaration of intention to make a scheme or the date of a notification under sub-section (1) of Section 24 and

33

without reference to improvements due to the alteration of its boundaries.”

Section 67, it will clearly appear, is intended to make adjustments between the right to compensation for loss of land suffered by the owner, and the liability to make contribution to the finances of the scheme; and Section 71 is a corollary to Section 67. Section 71 provides :

“If the owner of a original plot is not provided with a plot in the final scheme or if the contribution to be levied from him under Section 66 is less than the total amount to be deducted therefrom under any of the provisions of this Act, the net amount of his loss shall be payable to him by the local authority in cash or in such other way as may be agreed upon by the parties.”

17. The provisions relating to payment of compensation and recovery of contributions are vital to the successful implementation of the Scheme. The owner of the reconstituted plot who gets the benefit of the scheme must make contribution towards the expenses of the scheme: the owner who loses his property must similarly be compensated. For the purpose of determining the compensation, the Legislature has adopted the basis of market value of land expropriated, but the land is valued not on the date of extinction of the owner’s interest, but on the date of the declaration of intention to make the scheme.”

38. In the matter of Kiritbhai Nandvadan Bhatt and others Vs.

Ahmadabad Municipal Corporation 1996 (1) GLH 905, it has

been held that making provision for allotment of land to EWS

persons is not prohibited in any law as it is a public purpose. The

town planners are within their authority to provide plots to be used

for a public purpose, therefore, when plots are reserved for the

members of EWS, the same is neither illegal nor arbitrary. In the

said case, the concerned Corporation allowed slum dwellers to

remain in occupation of Plot No.463 instead of dislocating them

and asking them to shift to Plot No.187, which was reserved for

EWS. Although by permitting this deviation, the land use was

34

violated to some extent but the Supreme Court permitted the same

with an observation that even if there is a lapse on the part of the

authorities in not meticulously following the procedural

requirements, but when substantial justice has been done it would

not be proper to interfere in the matter.

39. The report of the Committee constituted u/s 50(5) has been

filed as Annexure R-3/2, on a reading of which, it would clearly

appear that the committee report running into about more than 100

pages have considered all the aspects mentioned in sub-section (6)

of Section 50 by defining and demarking the areas allotted to or

reserved for public purpose; demarking the reconstituted plots;

determining as to whether the areas reserved for public purpose are

wholly or partially beneficial to the respondents within the area of

Scheme; evaluate the value of the original and reconstituted plots;

and other matters as contained in Clauses (v), (vi) and (vii) which

have been dealt with by mentioning that that they are not

applicable because the State Government has decided not to seek

payment of incremental cost/contribution cost from the land-holder

on account of development of area while prescribing the size of the

reconstituted plots for which respective landholders would be

entitled. It was decided by the Committee, after considering the

provisions of National Building Code of India, 2005 and C.G. Land

Development Rules 1984, that the minimum size of the

reconstituted plots should be 50 square meters and the persons

who are holding smaller plots upto 1500 sq.ft. shall be allotted

reconstituted plots of 40-43% area; those who possess plots of size

1500 sq.ft. to 2900 sq.ft., shall be provided plots having 35-36% of

35

the original area and those persons who are holding the land more

than 2900 square feet shall be allotted/reconstituted plot of an area

equal to 35% of their original area.

40. This Court has gone through the report on item No.4 i.e.,

reconstituted plots recommended by the Committee only to find that

the matter has been considered by the Committee in an elaborate

manner after considering the relevant parameters, therefore, the

recommendation on this aspect is neither arbitrary nor illegal nor

can be said to be without application of mind or irrational.

Therefore, the objection raised by the petitioners on this aspect also

deserves to be rejected.

41. It has also been argued that the area of reconstituted plot

is much less than the area of original plot, therefore, it

amounts to deprivation of land and hence the Scheme of

reconstitution of plots is arbitrary and confiscatory being

violative of Article 31 of the Constitution of India.

The above argument appears to be attractive, however, while

dealing with similar argument, the Supreme Court in the matter of

Maneklal Chhotalal (Supra) has held that the petitioners may

have originally owned larger extents of land, in different areas,

which may or may not be fit for building purposes, there can be no

controversy that the reconstituted plots, though of a lesser area,

have a higher value, as building sites, in view of various

improvements and amenities provided under the Town Planning

Scheme. What parties, like the petitioners, may have lost in actual

area of land, can certainly be considered to have been more than

sufficiently compensated by the increased value of the reconstituted

36

plots. There is no question of any deprivation of property, therefore,

so as to attract Article 31 of the Constitution.

The Scheme in question is formulated in exactly the same

manner in which the Scheme before the Supreme Court in the

above referred matter of Maneklal Chhotalal (supra) was

formulated, in so far as it concerns reconstitution of plots and

allotment of reconstituted plots to the landholders. Since the law

has been settled by the Supreme Court, this Court does not find

any arbitrariness much less deprivation of property when the area

of reconstituted plots allotted to the landholders are less than their

original area.

42. Regarding reservation of land for EWS dealt with as Item

No.6, the Committee proceeded to examine the provisions of RDP

2021, C.G. Municipalities (Registration of Colonizer Terms and

Conditions) Rules 1998, C.G. Gram Panchayat (Registration of

Colonizer Terms and Conditions) Rules 1999; National Urban

Housing and Environment Policy 2007 and the Provisions of

Adhiniyam 1973. Referring to the National Housing Policy 2007,

the Committee elaborately discussed that the said Policy lays

special emphasis for making provision of housing for weaker section

and lower income groups. It is to be seen that u/s 49 of the

Adhiniyam, a Town Development Scheme has to make provision for

acquisition and development of land for public purpose such as

housing development and it is the duty of the Committee to address

itself to define and demark the areas allotted to or reserved for

public purpose while making proposal under sub-section (6) of

Section 50. In other words, the housing development is one of the

37

public purpose and when it is meant for EWS class of persons, it

cannot be said that such provision cannot be made. In any case,

there is no restriction or prohibition for reserving the land for

persons belonging to EWS. Annexure R-3/10 is the Housing Policy

of Chhattisgarh which also makes provision for reserving the land

for EWS category and the National Building Code of India

(Annexure R-3/11) has also high-lighted housing requirement of

EWS category and has thereafter recommended that special action

plan should be prepared for urban slum dwellers. Thus,

considering from all angles, reservation of land for EWS is in public

interest and the same being in conformity with the States Housing

Policy as well as National Housing Policy is in consonance with the

public policy, therefore, it is not unlawful. Anything which is for

welfare of weaker sections of Society will not be branded as illegal

when the subject enactment does not prohibit making such

reservation. When there is no specific provision for a particular

action but the authority while making such provision/action is

guided by State Policy and National Policy, the action can never be

branded as arbitrary.

43. It is also put-forth by the petitioners that as per the

environment clearance certificate, RDA has to maintain 185

hectares of green area, however, from the final scheme; it would

appear that green area is much less than that, therefore, there

being clear violation, the environment certificate and the scheme

cannot be acted upon. In the area analysis of town development

scheme No.4 Kamal Vihar, which is part of Annexure R-3/2, an

area of 25.43 hectares has been reserved for city park and 103.98

38

hectares for regional park. There is another area of 0.83 hectares

for water bodies. The total of these areas is a little more than 130

hectares. It has been stated by RDA that there would be extensive

road side plantation along all the major roads as well as sector

roads and the green area would cover more than 185 hectares.

Apart from that, community open space, graveyard/ cremation

grounds and play grounds would cover more than 40 hectares of

land. From the area analysis of the scheme and the statement

made by learned counsel for the RDA, this Court is satisfied that

the green area in the scheme, as per the terms of the environment

clearance is not violated. Even otherwise, it is to be seen that the

project is not an industrial project and there would be no such

pollution such as it happens in a chemical factory or thermal power

plant.

44. The petitioners have further assailed the Scheme on the

ground that environmental clearance has not been obtained

from appropriate authority i.e., the Central Government,

therefore, the Scheme is vitiated and deserves to be quashed on this

ground also. Indisputably, the environment clearance has been

obtained from State Level Environment Impact Assessment

Authority vide its order dated 25.01.2011. According to the

notification issued by the Ministry of Environment and Forest

(MOEF) dated 14.09.2006, there are two categories of projects,

namely Category ‘A’ and Category ‘B’, which require environment

clearance by the respective authorities. While category ‘A’ projects

have to seek clearance from Central Government, the projects

falling under Category ’B’ are required to seek clearance from State

39

Level Environment Impact Authority. The present project is covered

under Clause VIII (b) of the notification as it covers an area of more

than 50 hectares for township and area development projects and is

appraised as Category ‘B-1’ project.

45. In the return filed by the Central Government in W.P(C).

No.6040/2011 (the writ petition was later on withdrawn), the

Central Government has categorically stated that the subject project

has been duly cleared by appropriate authority i.e., the State Level

Environment Impact Assessment Authority. Thus, in view of the

categorical assertion by the central government, this Court has no

hesitation in holding that the respondents have obtained

environment clearance in terms of notification dated 14.09.2006.

46. Another argument has been raised that the notification

dated 04.03.2011 is not authenticated in terms of Article 166

of the Constitution of India, therefore, it is not a notification in

the eye of law and for this, the Scheme deserves to be quashed. The

respondent State has explained that when several notifications of

the concerned department are published together, it is the

established practice that the authentication as required under

Article 166 of the Constitution of India is mentioned in the last

notification of the series. Such practice has been approved to be a

valid exercise of power by a Division Bench of M.P. High Court in

the matter of Iftikhar Ahmed S/o Dost Mohammad vs. State of

Madhya Pradesh, AIR 1961 MP 140. In the present case also,

there are more than one notification including the notification dated

04.03.2011 which were published on the same day and the last

notification bears the authentication of the Governor, therefore, in

40

view of the law laid down by the M.P. High Court in the matter of

Iftikhar (supra), there is no substance in the argument raised by

learned counsel for the petitioners that the notification is not

properly authenticated.

47. Yet another ground has been raised by the petitioners that

the Scheme being essentially u/s 49(viii) of the Adhiniyam,

1973, no land can be acquired for the Scheme as the said

clause provides for reconstruction of plots for the purpose of

buildings, roads, drains, sewage lines and other similar

amenities but does not provide for acquisition of land for such

matters.

Section 49 of the Adhiniyam provides that the town

development scheme may make provision for any of the matters as

provided under Clauses (i) to (ix). Clause (iii) speaks about the

acquisition and development of land for public purposes such as

housing development, development of shopping centers, cultural

centers and administrative centers. Similarly, other clauses provide

for acquisition, development and sale or leasing of land for the

purpose of town expansion and for commercial and industrial

purposes; for the purpose of laying out or remodeling of road and

street patterns; for play grounds, parks, recreation centers and

stadia. Section 50 of the Adhiniyam prescribes the procedure as to

how a town development scheme is to be prepared and sub-section

(5) thereof provides for constitution of a Committee where the town

development Scheme relates to reconstitution of plots and the

Committee has been enjoined with the duty to consider several

aspects as mentioned in Clauses (i) to (vii) of sub-section (6) which

41

include evaluation of the value of original and reconstituted plots,

payments of compensation or obtaining contribution from the

beneficiaries of the Scheme on account of reconstitution of the plots

etc., etc. A conjoint reading of Sections 49 & 50 makes it absolutely

clear that the present Scheme is not only under Section 49(viii) but

it is a Scheme as a whole u/ss 49 & 50. The Entire procedure

prescribed u/s 50 has been followed by the RDA, therefore, the

arguments raised by the petitioners to the contrary by treating the

same as if it is a scheme only u/s 49(viii) is absolutely

misconceived.

48. The petitioner in W.P(C). No.759/2011 has argued that the

petitioner’s land is situated at a distance of more than one

kilometer from the terminal end of the scheme and is thus

segregated from the main area, yet his land has been included

in a malafide manner. He would submit that the land adjacent to

the petitioner’s land has been excluded from the Scheme and there

is no contiguity of the other scheme area with the area belonging to

the petitioner. According to the RDA, when the draft scheme was

notified inviting objections, the land of the petitioner was

contiguous, however, when a patch of thickly populated/densely

constructed area falling between the petitioner’s land and the main

scheme land was excluded upon considering the report of the

revenue authorities, petitioner’s land was segregated and it is not a

case that from the very beginning his land was included even

though it was segregated from the main area. The respondents

have further submitted that the petitioner’s land is connected with

the Scheme area through the Highway.

42

On perusal of the relevant map, it would appear that there are

other lands situated along-with the land of petitioner in W.P(C).

No.759/2011. There is village settlement of Dumartarai, which is

coming within the boundary of town development scheme.

However, the said area was left out to avoid large scale demolition

because it is thickly populated. Further the petitioner has not

raised any such objection regarding non-contiguity of the land when

the matter was considered by the Committee constituted u/s 50(5)

of the Adhiniyam. In Babulal Badriprasad Verma Vs. Surat

Municipal Corporation (2008) 12 SCC 401, it has been held that

if no objection is raised before the Committee in respect of the draft

scheme the petitioners are estopped from raising such contentions

before the writ court. Thus the petitioner is also estopped from

questioning the Scheme on this ground which was not raised before

the Committee.

There is yet another reason why this argument raised in

W.P(C). 759/2011 sans substance because the land in question is

covered under sector 14-B and 15-C of the sanctioned lay out plan

of the Scheme. These sectors cover an area of 22 acres belonging to

19 land owners. Thus, it is not a case where the petitioner has

been singled out for inclusion in the scheme and more over,

according to RDA all other land owners have either consented or

have not objected to the scheme as they have not preferred any writ

petition. Thus, the action of RDA in including the land belonging to

the petitioners of W.P(C). No. 759/2011 is not arbitrary or malafide.

49. The petitioners have also objected to the use of the term

“integrated township” in all the correspondences prior to

43

finalization of the Scheme to submit that the RDA, in fact, wanted

to frame a scheme for “integrated township” and not a town

development scheme and since “integrated township” is a concept

under “Bhumi Vikas Rules 1984”, the Scheme in question

prepared under the Adhiniyam 1973 is not in accordance with

law.

This Court has gone through the documents concerning the

procedure followed by the RDA for preparing/finalizing the Scheme

only to find that the RDA has never referred to Bhumi Vikas Rules

1984 (for short “Rules, 1984”) even though initially the term

“integrated township” was used. If the Scheme has been prepared

under the provisions of the Adhiniyam, 1973, mere use of the words

“integrated township” which is otherwise defined and used in the

Bhumi Vikas Rules, 1984, would not vitiate the exercise under the

Adhiniyam, 1973. Had it been a case that initially an “integrated

township” under the Rules, 1984 was conceived and processed but

it was left midway and thereafter the development authority took

shelter of the provisions of the Adhiniyam 1973, there might have

been some substance in the argument regarding nomenclature,

however, since Rules 1984 were never invoked, there is absolutely

no substance in the argument raised by the petitioners and this

ground of challenge must also fail.

50. It is settled law that when the decision making authority has

been vested with power to do a particular thing, mere quoting of

wrong provision does not invalidate the action. See MIG Cricket

Club Vs. Abhinav Sahakar Education Society (Supra). Drawing

the analogy from the said legal principle, this Court has no

44

hesitation in concluding that mere quoting of different name which

is otherwise referred in the Bhoomi Vikas Rules 1984, is not fatal

for the subject Scheme which is otherwise formulated under the

Adhiniyam 1973.

51. Having dealt with the grounds of challenge raised by the

petitioner, this Court deems it appropriate to refer to some other

aspects of the matter as they have material bearing on the outcome

of the writ petition and the respondents have also raised these

objections.

The petitioners have challenged the Scheme prepared by the

RDA on the ground that master plan has been notified after

preparation of the Scheme. However, they have chosen not to assail

the validity of the modified master plan. In absence of such

challenge, the revised plan has merged into and has become a part

of the original plan, therefore, once it is held that the modified

master plan cannot be quashed, the petitioners may not challenge

the Scheme on the ground that it is not in conformity with the

master plan. In fact, the Scheme itself could have been challenged

by the petitioners by filing a revision petition u/s 51 of the

Adhiniyam, however, none of the petitioners have preferred any

revision u/s 51 of the Adhiniyam and have chosen to approach this

Court directly. Many grounds have been raised before this Court

and they have been dealt with, however, most of the arguments

were not raised before the Authority or the Committee constituted

u/s 50(4) of the Adhiniyam. In Babulal Badriprasad Varma Vs.

Surat Municipal Corporation, (2008) 12 SCC 401 the Supreme

Court has held that once the petitioners filed objections but did not

45

pursue it, they cannot raise grounds at subsequent stage.

Similarly, in Sanjay Gandhi Grah Nirman Sahkari Sanstha

Maryadit Vs. State of Madhya Pradesh, AIR 1991 MP 72, it has

been held by the M.P. High Court that the petitioners could have

placed all the facts in detail before the revisional authority and had

an opportunity to say that the action of the Development Authority

is discriminatory, but it appears that the petitioners claiming

discrimination had not resorted to this remedy available to them.

Therefore, such plea cannot be considered. Similar is the law laid

down by the Supreme Court in the matter of Raipur Development

Authority Vs (RDA) Vs. Anupam Sahkari Griha Nirman Samiti

(2000) 4 SCC 367. The petitioners have raised grounds regarding

non-issuance of notice in prescribed form or other kinds of

procedural violation. In this context, this Court would refer to

judgment of Supreme Court in the matter of Shambhu Prasad

Sharma Vs. Charandas Mahant and others (2012) 11 SCC 390

wherein it has been held that when a substantial compliance with

the requirement as to form is made, every departure from the

prescribed format cannot be made a ground for rejection of

nomination paper. Thus if the substantial compliance has been

made which this Court has already found to have been complied

with, the impugned Scheme cannot be quashed.

52. For the foregoing reasons, this Court does not find any

substance in any of the writ petitions. Consequently, all the writ

petitions fail and are hereby dismissed.

JUDGERao

46

HEADLINES

W.P.(C).No.6280/2010 and other connected matters.

“Kamal Vihar Scheme” of Raipur Development Authority does not suffer from any legal infirmity.

jk;iqj fodkl izkf/kdj.k ds dey fogkj ;kstuk fof/k

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HIGH COURT OF CHHATTISGARH, BILASPUR SB: HON'BLE …highcourt.cg.gov.in/Afr/courtJudgementandAFR/2013/... · HIGH COURT OF CHHATTISGARH, BILASPUR SB: HON'BLE PRASHANT KUMAR MISHRA,