Francis v. Chalakudy Municipality — 1999 DIGILAW 402 (KER)

Judgment :- P.K. Balasubramanyan, J. The petitioners are owners of small extents of land within Chalakudy Municipality. With a view to take up a detailed town planning scheme restrictions were imposed on the user of the said lands. The petitioners applied for licences to construct houses. They received replies to the effect that the lands are freezed for the purpose of a detailed town planning scheme. The petitioners could not therefore put the lands to the use they wanted to. 2. On 1.11.1975 a notification was issued under S.8 of the Town Planning Act. The said notification indicated the properties sought to be included in the scheme. The said scheme was approved by the Government under sub-s.3 of S.12 of the Town Planning Act. Ext. P2 order dated 6.3.1984 was issued in that behalf. It is the case of the petitioners that as per the said Government order sanction had been granted only as regards the scheme for the purpose of an office complex at Chalakudy. On the scheme of the Act the properties were not acquired within three years of the notification dated 6.3.1984. According to the petitioners since the Government order under the scheme was not followed by a notification within three years of the Government Order, the scheme must be taken to have lapsed. It is submitted that the petitioners cannot be perpetually prevented from using their lands for their own purposes and any such attempt would be unreasonable and violative of their rights under the Constitution of India. The petitioners have therefore filed this Original Petition for a declaration that the Detailed Town Planning Scheme promulgated by the Chalakudy Municipality and approved by the Government as per order dated 6.3.1984 had lapsed under the provisions of the Town Planning Act, for the issue of a writ of mandamus retraining the respondents from interfering with the right of the petitioners to deal with their respective properties included in the notification dated 1.11.1975 and for other incidental reliefs. 3. The Chalakudy Municipality filed a counter affidavit contending that the Detailed Town Planning Scheme cannot lapse merely because the lands were not acquired within three years of 6.3.1984, the Government Order approving the scheme and that as soon as funds are available the scheme would be taken up and completed. 3. The Chalakudy Municipality filed a counter affidavit contending that the Detailed Town Planning Scheme cannot lapse merely because the lands were not acquired within three years of 6.3.1984, the Government Order approving the scheme and that as soon as funds are available the scheme would be taken up and completed. The lands were needed for a public purpose and no relief should be granted to the petitioners in this proceeding under Art.226 of the Constitution of India. 4. The State of Kerala filed a counter affidavit contending that the lands of the petitioners were proposed to be acquired under the Detailed Town Planning Scheme, that the effect of not completing the acquisition of the lands within three years of the Government Order dated 6.3.1984 was only that before acquiring the land the Government will have to issue a fresh declaration under the Land Acquisition Act, that the Town Planning Act does not provide for the lapsing of a scheme on the ground that the land proposed for acquisition under the Detailed Town Planning Scheme was not acquired within three years of the notification, that the land was needed for a public purpose, that the lands of all the petitioners are not included in the proposal and some of them have not even sought permission and that the petitioners are not entitled to any relief. 5. When the Original Petition came up for hearing before a learned Single Judge, the learned Single Judge felt that there was a conflict of views in this court on the question whether the scheme itself would automatically lapse if the lands were not acquired within three years of the notification under S.12(2) of the Town Planning Act and the matter required to be decided by a Division Bench. The Division Bench in its turn felt that since what was being canvassed for was the correctness of the decision of a Division Bench, it would be appropriate to refer the Original Petition to a Full Bench and thus referred the case to the Full Bench. 6. The Town Planning Act was originally proclaimed on 18.3.1939 in the State of Travancore. It was passed on 31.12.1932 with a view to regulate the development of the towns, to secure to their present and future inhabitants, sanitary conditions, amenity and convenience. 6. The Town Planning Act was originally proclaimed on 18.3.1939 in the State of Travancore. It was passed on 31.12.1932 with a view to regulate the development of the towns, to secure to their present and future inhabitants, sanitary conditions, amenity and convenience. The Act underwent three amendments after the formation of the State of Kerala and it applies to the erstwhile areas of Travancore and Cochin. The Malabar area of the State is governed by the Madras Town Planning Act, 1920. The Town Planning Act envisaged under S.3 thereof the drawing up of a Town Planning Scheme providing for the matters enumerated in that Section. It could provide for the laying out or relaying out of land, either vacant or already built upon as building sites or for any of the purposes mentioned in S.3. It contemplated the acquisition by purchase, exchange or otherwise, of any land or other immovable property within the area included in the scheme whether required immediately or not. The allotment or reservation of land for streets, road-squares, houses, buildings for religious and chartable purposes, open spaces, gardens, iccreation grounds, schools, markets, shops, factories, hospitals, dispensaries, Government and municipal buildings and public purposes of all kinds was envisaged. It also provided for the imposition of conditions and restrictions in regard to the character, number, architectural features and height of buildings allowed in specified areas and the purposes to which buildings or specified areas may or may not be appropriated and the provision and maintenance of sufficient open space about buildings. S.6 of the Act conferred power for the preparation of a Town Planning Scheme determining the lines on which the improvement and development of the areas included in the scheme shall proceed and providing for such of the matters referred to in S.3 of the Act. Under S.7 of the Act the Muncipal Council was given the right to decide by a resolution to prepare a scheme in respect of any land within the muncipal area or to adopt with or without modifications a draft scheme proposed by all or any of the owners of the land in question. The Chairman of the Municipal Council was then to have a plan prepared showing the land proposed to be included in the scheme, the surrounding lands and any existing streets. The Chairman of the Municipal Council was then to have a plan prepared showing the land proposed to be included in the scheme, the surrounding lands and any existing streets. The resolution to adopt a scheme had then to be notified under S.8.of the Act by publication in the prescribed manner and the notification had to indicate that a copy of the plan prepared under S.7 of the Act was kept for the inspection of the public at all reasonable hours at the Muncipal Office. Within 12 months of the date of the notification issued under S.8 of the Actor within such further period not exceeding 12 months that the Government may allow and after consulting, in the prescribed manner, the owners of the lands and buildings in the area affected a draft scheme had to be prepared and published in terms of S.9 of the Act. S.10 of the Act conferred power on the Government to require a Municipal Council to make Schemes. S.11 indicated the contents of a draft scheme. The sanction of the scheme by the Government is contemplated by S.12 of the Act. Under Sub-s.(1) of S.12, if within sixty days from the date of the publication of a draft scheme any person affected thereby raised an objection in writing or made a suggestion in writing, the same was to be considered by the Municipal Council which had even the power to modify the scheme on the basis of the objection or suggestion. Thereafter the scheme as passed or adopted by the Council, together with all objections and suggestions, were to be submitted to the Government for sanction and sub-s.(2) of S.12 also contemplated the publication of the factum of such submission. Under S.12(3) of the Act the Government after considering the objections and suggestions and making an enquiry as it thought fit, was to sanction the scheme with or without modification or to refuse to sanction the scheme or to return the scheme to the Council for reconsideration. Once the sanction was granted under S.12(3) of the Act, under S.12(5) of the Act the sanction of the Government to the scheme was to be published by notification in the Gazette in the prescribed manner and the notification had to state at what place and time the scheme will be open to inspection of the public. Once the sanction was granted under S.12(3) of the Act, under S.12(5) of the Act the sanction of the Government to the scheme was to be published by notification in the Gazette in the prescribed manner and the notification had to state at what place and time the scheme will be open to inspection of the public. Under S.12(6) of the Act a notification published under S.12(5) of the Act shall be conclusive evidence that the scheme had been duly made and sanctioned. The Scheme shall have effect from the date of publication of the notification under S.12(5) of the Act and the execution of the scheme had to be commenced forthwith unless the scheme itself provided for deferring the scheme and had fixed a time for the commencement of the scheme. S.13 of the Act conferred power for revocation or variation by a subsequent scheme of the scheme notified under S.12 of the Act. S.15 of the Act laid down the restrictions on the owners after a declaration of the scheme is made and S.16 of the Act obliged the owners to comply with the scheme after sanction. S.15 dealt with the interregnum between the publication of a notification under S.8 or S.10 of the Act and the insurance of sanction and the publication of that sanction in terms of S.12 of the Act. S.15(3) specifically provided that the restrictions imposed by that section shall cease to operate in the event of the Government refusing to sanction the scheme under S.12 of the Act. S.16 provided that from the date of the notification by the Government sanctioning the scheme under S.12 of the Act, all owners of lands and buildings in the area affected by the scheme who propose to construct or reconstruct or in any way alter or rebuild the building, had to conform in every particular with the requirement of the scheme notified. The Section also provided that no building shall be constructed or reconstructed in any area in which building is expressly forbidden in the scheme or which is reserved in the scheme for any purpose incompatible with building. S.17 of the Act conferred power on the authority to enforce the scheme. 7. Chapter VII of the Act provides for the application of the Land Acquisition Act subject to the modifications emmerated in S.34 of the Act. S.17 of the Act conferred power on the authority to enforce the scheme. 7. Chapter VII of the Act provides for the application of the Land Acquisition Act subject to the modifications emmerated in S.34 of the Act. S.32 of the Act provides that immovable property required for the purpose of Town Planning Scheme would be deemed to be land needed for a purpose within the meaning of the Land Acquisition Act. Act XI of 1089 and may be acquired under that Act as modified in the manner provided in Chapter VII of the Town Planning Act. S.33 provides that the Notification under S.12of the Town Planning Act was to have effect of declaration under S.6 of the Land Acquisition Act, 1089. The section provides that once a Notification under S.12 of the Town Planning Act has been made, no further declaration under S.6 of the Land Acquisition Act of 1089 was necessary but it shall not be incumbent on the Government or the concerned authority to take immediate steps for the acquisition of such lands. The Section also provides that if the land is not acquired within three years of the date of the Notification under S.12 of the Town Planning Act the Notification shall cease to have effect as a declaration under S.6 of the Land Acquisition Act of 1089.S.34 supersedes Ss.14,22 and 23 of the Land Acquisition Act of 1089 regarding the matters to be taken into consideration, and not to be taken into consideration while determining the compensation payable to a land owner whose land is acquired for the purpose in a Town Planning Scheme. Before proceeding further it may be appropriate to notice here that the Supreme Court in State of Kerala v. T.M. Peter (AIR 1980 SC 1438) struck down S.34 of theTown Planning to the extent it excluded the payment of solatium. The Supreme Court also held that S.34 would read as providing that S.14 and 22 of the Land Acquisition Act of 1089 shall have no application to the acquisition of the property for the purpose of the Town Planning Act. The Supreme Court stated that the attempt to exclude the solatium on the compensation amount payable under the Land Acquisition Act was discriminatory and hence was bad. 8. The Supreme Court stated that the attempt to exclude the solatium on the compensation amount payable under the Land Acquisition Act was discriminatory and hence was bad. 8. The case of the petitioners is built upon the fact that the proceedings for acquisition were not commenced within three years of the Notification under S.12 of the Act and consequently, whole of the scheme notified under the Town Planning Act had lapsed. Since this argument is based essentially on S.33 of the Town Planning Act we think it appropriate to read that Section here: "33. Notification under S.12 to have effect as a declaration under S.6 of the Land Acquisition Act:-Notwithstanding anything in the Land Acquisition Act, XI of 1089, a notification under S.12 shall operate in respect of any land required for the purposes of the scheme as a declaration under S.6 of the said Act and no further declaration be necessary, but it shall not be incumbent on Our Government or officer authorised in that behalf, to take immediate steps for the acquisition of such lands. Provided that if the land is not acquired within three years from the date of the notification, it shall cease to have effect as a declaration under S.6 of the Land Acquisition Act, XI of 1089". Two things that strike one are that there was no obligation on the Government or the authorised officer to take immediate steps for acquisition of lands which are part of the scheme notified under S.12 of the Town Planning Act though the said Notification under the Town Planning Act would also act as a declaration under the Land Acquisition Act of 1089 and the other that if the land is not acquired within three years from the date of the Notification under S.12 of the Town Planning Act, the Notification shall cease to have effect as a declaration under S.6 of the Land Acquisition Act of 1089. In this context, we may also notice the difference between the position before the issuance of a Notification under S.12 of the Town Planning Act and after the issuance of a Notification under S.12 of the Act. In this context, we may also notice the difference between the position before the issuance of a Notification under S.12 of the Town Planning Act and after the issuance of a Notification under S.12 of the Act. In the former S.15(3) of the Act provides that the restrictions imposed by the Town Planning Act shall cease to operate in the event of the failure to prepare a draft scheme within two years of the date of publication of the Notification under S.8 or 10 of the Act or in the event of the Government refusing to sanction such scheme under S.12 of the Act In the latter situation covered by S.16 of the Town Planning Act, there is no provision corresponding to S.15(3) of the Town Planning Act. 9. On a plain reading of S.33 of the Town Planning Act it does not appear that the scheme notified under S.12 of the Act would lapse on the steps for acquisition not being taken within three years of the Notification. That the scheme would not lapse is also indicated by the specific provision that even though the Notification under S.12 of the Town Planning Act will operate as a declaration under S.6 of the Land Acquisition Act, it was not incumbent on the Government or the authorised officer in that behalf to take immediate steps for acquisition. The specific provision is that if the land is not acquired within three years from the date of the Notification under S.12 of the Town Planning Act, Notification shall cease to have effect as a declaration under S.6 of the Land Acquisition Act of 1089. We have already noticed that there is no provision corresponding to S.15(3) of the Act in a case where the Notification under S.12 of the Town Planning Act is issued and the scheme had come into effect Thus prima facie, it appears that the scheme itself would not lapse merely on the ground that the acquisition under the Land Acquisition Act was not completed within three years of the Notification issued under S.12 of the Town Planning Act. 10. 10. But in Thankamma v. G.C.D.A. (1985 KLN 661) a learned judge of this Court after referring to Ss.9,12 and 33 of the Town Planning Act and taking note of the fact that the Notification under S.12 was made three years prior to the approach to the court by the petitioners in that case stated: "Period of three years mentioned in S.33 expired on 17.7.1978 and the scheme is no longer in force. It is not open to the respondent to acquire the petitioners lands included in the scheme published on 17.7.1975 as the declaration itself had been allowed to lapse." With respect, no reasons are stated by the learned judge in support of the statement that the scheme is no longer in force. On the plain language of S.33 of the Town Planning Act, only consequence of not completing the acquisition within three years of the Notification under S.12 of the Town Planning Act is that, the said Notification shall not operate as a declaration under the Land Acquisition Act. That this decision could not be considered an authority on this aspect is also clear from the decision in appeal in that case. In the judgment in W. A. 296 of 1985, the Division Bench set aside the judgment of the Single judge in so far as it related to the quashing of the scheme and confined the relief to the petitioners in that Original Petition on the facts of that case and the submission made on behalf of the G.C.D.A. We may also note that the attention of the learned judge who decided Thankamma's case was not invited to the decision of the Supreme Court in State of Kerala v. T.M. Peter (AIR 1980 SC 1438 ). In O.P. 4417 of 1988 a learned Single Judge of this court did not find that the scheme notified under S.12 of the Town Planning Act had lapsed notwithstanding the expiry of four years from the date of Notification. But the learned judge noted that matters cannot be allowed to drift since the owners of lands are seriously affected in their enjoyment of their lands by the Notification of the scheme and the indefiniteness in implementing the scheme and directed the authority, to act expeditiously and to take a final decision within a reasonable time since otherwise exercise of power will amount to gross abuse or malafide exercise of power. The court thus directed the Town Planning authority to move in a business like manner and expeditiously to take a decision one way or the other within the time indicated in that judgment. This decision was taken up in appeal by the Development Authority and the decision of the Division Benchis reported asG. C. D.A. v. Dr. M.Chandrasekhar(1994(1) KLT 778), though the decision itself was rendered on 12.12.1990. 11. The Division Bench held that if the land is not acquired within three years from the date of Notification under S.12 of the Town Planning Act, the Notification as a declaration under S.6 of the Land Acquisition Act lapses with the result that no step for acquiring the land can be taken. The Division Bench further observed that if no step can be taken as required by S.33 of the Town Planning Act for acquiring the land within the period of three years from the date of Notification under S.12 of the Act, restrictions imposed on the owners by S.16 of the Town Planning Act would cease to have effect. With respect, we do not find any reason given by the Division Bench in support of this conclusion. It is not stated how the failure to take steps for acquisition under the Land Acquisition Act within three years of the Notification under S.12 of the Town Planning Act, would have the result of the authority being not able to take any step for acquiring the land under the Land Acquisition Act. With respect, it is also not clear how it follows therefrom that the restrictions imposed on the owners by S.16 of the Town Planning Act would cease to have effect if no acquisition is made under the Land Acquisition Act within three years of the Notification under S.12 of the Town Planning Act Their Lordships did not consider the question whether in the bight of the provisions contained in the Town Planning Act, the authorities could issue a fresh Notification under S.4(1) of the Land Acquisition Act for acquiring the land for the purpose of the scheme sanctioned and notified under S.12 of the Town Planning Act. With respect, we may also point out that there is some confusion in the said decision while referring to some of the provisions in the Town Planning Act and the Land Acquisition Act. With respect, we may also point out that there is some confusion in the said decision while referring to some of the provisions in the Town Planning Act and the Land Acquisition Act. But the ratio of that decision has to be understood to be that if no steps are taken to acquire the land within three years of the Notification under S.12 of the Town Planning Act, the scheme would itself lapse. 12. In O.P. 4956 of 1989, a learned judge of this Court after noticing that there was no provision in the Town Planning Act providing for the life of a scheme and taking note of the fact that the scheme framed in that case mentioned a period of 20 years as the period during which the scheme would subsist, held that the said period of twenty years was unreasonable especially in the context of an earlier direction given by the court in O.P. 3461 of 1988. The court therefore directed the authority concerned to consider the application of the petitioner in that case for permission to put up a construction in an area coming within the scheme. In appeal against that decision as W. A. 465 of 1990, the Division Bench after taking note of the contention of the learned Government Pleader on behalf of the State that there was no time limit for implement action of a scheme notified under the Town Planning Act observed that even if no time limit was fixed in the Town Planning Act, the court could not countenance a scheme remaining in limbo perennially. The Bench further stated that the learned Single Judge had noted that the scheme had only a life of twenty years and that finding was not challenged in the Writ Appeals filed, against the decision. Thus the appeal was dismissed. 13. The Bench further stated that the learned Single Judge had noted that the scheme had only a life of twenty years and that finding was not challenged in the Writ Appeals filed, against the decision. Thus the appeal was dismissed. 13. In Anto v. Muncipal Commissioner (1994(1) KLT 795) another learned Single Judge after referring to the decision in Thankamma v. G.C.D.A. (1985 KLN 661) and in W.A. 296 of 1985, appeal therefrom and on an advertance to the relevant provisions of the Town Planning Act came to the conclusion that there was no provision in the Town Planning Act which would have the effect of nullifying the scheme sanctioned under S.12 of the Town Planning Act on the ground that the land was not actually acquired within three years of the Notification under S.12 of the Act. The learned judge held that in the light of the various provisions in the Town Planning Act it could not be legal y held that the scheme was no longer in force even though three years had elapsed from the date of the Notification under S.12 of the Town Planning Act and so long as the scheme was in force the prohibition contained in Ss.15 and 16 of the Town Planning Act would also be in force. But the learned judge finding that there was no jurisdiction in the respondents not finalising or completing the acquisition proceedings in that case, directed the respondents to expedite the proceeding. 14. In O.P. 9793 of 1997, the question was whether a scheme under the Town Planning Act could be revived once there is no declaration of the scheme in terms of S.12(3) of the Act within time. The question involved in this case was not involved therein. The learned judge held that even though no time limit was prescribed under S.12 of the Act the Development Authority had to submit the scheme for approval by the Government within a reasonable period after the scheme had been finalised. In that case no good reasons were also given for the delay in submitting the scheme to the Government. Hence it was not possible to permit the implementation of the scheme. 15. In Balakrishnan v. Pradeep Kuwar (1996 (1) KLT 562) another learned Single Judge refused to follow the decision in Anto v. Municipal Commissioner (1994(1) KLT 795) in view of the decision in G.C.D.A. v. Dr. Hence it was not possible to permit the implementation of the scheme. 15. In Balakrishnan v. Pradeep Kuwar (1996 (1) KLT 562) another learned Single Judge refused to follow the decision in Anto v. Municipal Commissioner (1994(1) KLT 795) in view of the decision in G.C.D.A. v. Dr. M.Chandrasekher (1994(1) KLT 778) and the observations in the judgment in W.A. 465 of 1990. In the order in C.A. Nos. 234 and 236 of 1995 in C.P. 5 of 1984 another learned Single Judge after referring to the decision in Thankamma v. G.C.D.A. (1985 KLN 661) and G. C.D.A. v. Dr. M. Chandrasekhar (1994(1) KLT 778) held that on failure to acquire the land under the Land Acquisition Act within three years of the Notification under S.12 of the Town Planning Act, the scheme itself would lapse. It is the correctness of the view expressed in G.C.D.A. v. Dr. M. Chandrasekhar (1994(1) KLT 778) and the decisions following it that arises for decision. 16. At this stage it is necessary to refer to the decision of the Supreme Court in State of Kerala v. T.M. Peter (MR 1980 SC 1438) in some detail. We may notice that this decision has not been referred to by any of the decisions referred to above in the context of the question whether the scheme itself would lapse on the expiry of three years from the date of Notification under S.12 of the Town Planning Act when the land in question is not acquired within three years of the Notification under S.12 of the Act. That case arose from a challenge by the land owners to the constitutional validity of S.34 of the Town Planning Act. Two learned judges in different Original Petitions held that sub-Ss.1 and 2(2) (a) of S.34 of the Town Planning Act was unconstitutional. In appeals, a Division Bench of this court in Land Acquisition Officer v. Xavier (ILR 1976(2) Ker. 620) dismissed the appeals confirming the finding that S.34(1) and S.34(2)(a) of the Town Planning Act was unconstitutional. Two learned judges in different Original Petitions held that sub-Ss.1 and 2(2) (a) of S.34 of the Town Planning Act was unconstitutional. In appeals, a Division Bench of this court in Land Acquisition Officer v. Xavier (ILR 1976(2) Ker. 620) dismissed the appeals confirming the finding that S.34(1) and S.34(2)(a) of the Town Planning Act was unconstitutional. Following the decisions of the Supreme Court to the effect that where there are no guidelines as to which set of provisions is to be followed for the purpose of acquisition (one under the Town Planning Act and the other under the Land Acquisition Act) and under what circumstances one is to be resorted to in preference to the other amounted to the conferment of an arbitrary power on the Govt. to choose between the two modes of acquisition and was unconstitutional the court held that the striking down of S.34(1) and S.34(2)(a) of the Town Planning Act was justified. It was this decision that was appealed against in the Supreme Court leading to the decision in State of Kerala v. T.M.Peter (AIR 1980 SC 1438). Dealing with the argument that no time limit was fixed in S.12 of the Town Planning Act within which the Government shall sanction the scheme and this was arbitary, the Supreme Court stated that city improvement schemes have facets which mark them out from other land acquisition proposals. The statute had left it to the Government to deal expeditiously with the scheme and according to their Lordships, there were several guidelines in the Act not to make the gap between the draft scheme and governmental sanction too procrastinatory to be arbitrary. Their Lordships added that court was not powerless to quash and grant relief where arbitrary protraction or malafide inaction of authorities injured an owner. The argument that the time limit written into the Land Acquisition Act were not available in the Town Planning Act and that made the Town Planning Act and especially S.34 of the Act arbitrary and unconstitutional was replied by their Lordships in the following words: - "An argument was put forward that under the Land Acquisition Act there is thus a protection against unlimited uncertainty for the owners once lands are frozen in the matter of dealing with them by an initial notification. This protection against protraction and inaction on the part of the State and immobilisation of ownership is absent in the Town Planning Act. According to Mr. T.C. Raghavan, appearing for some respondents, it makes for arbitrariness and discrimination in valedictory of the relevant provisions of the Town Planning Act. In our view there is no substance in this submission, having regard to specialised nature of improvement schemes and the democratic participation in the process required in such cases. We repel the submission". Their Lordships also repelled the argument that discrimination could arise out of invoking the provisions of the Town Planning Act on the one hand and the provisions of the Land Acquisition Act on the other. Their Lordships held that though there was apparently an option before the authority to acquire the land either under the Land Acquisition Act or under the Town Planning Act when land was needed for a scheme, it was only a theoretical option and was not a real option. Then dealing with the position that the application of different enactments to different persons may result in discrimination, the Supreme Court ultimately held that the provision in the Town Planning Act including the payment of solatium as provided for in the Land Acquisition Act would be in valid and in that context, the striking down of the exclusion of S.25 (Land Acquisition Act, 1089 referred to S.23 but their Lordships stated that it was really S.25 that was intended) of the Land Acquisition Act alone was sufficient and S.34(1) of the Town Planning Act need not be struck down. Their Lordships therefore declared that in addition to the market value of the land as determined under the Town Planning Act the Court shall in every case award a sum of fifteen per centum on the market value in consideration of the compulsory nature of the acquisition. No doubt this decision did not directly relate to the question whether the scheme came to an end on the expiry of three years from the Notification under S.12 of the Town Planning Act. But the Supreme Court found that the fact that there was no time fixed for the Government to sanction the scheme would not make the implementation of the Town Planning Act unconstitutional. But the Supreme Court found that the fact that there was no time fixed for the Government to sanction the scheme would not make the implementation of the Town Planning Act unconstitutional. The decision also indicates that the argument that the exclusion of a provision like the one in the Land Acquisition Act fixing a time within which the acquisition had to be completed would make the Town Planning Act arbitrary, was also repelled by their Lordships. Of course, there was no argument before the Supreme Court in that case that on the expiry of the period of three years from the date of Notification under S.12 of the Town Planning Act, the scheme itself must be taken to lapse. We are inclined to the view that the observations of the Supreme Court in that case would tend to indicate that the scheme does not lapse merely on the ground that acquisition of the land concerned under the scheme was not completed within three years of the Notification under S.12 of the Town Planning Act. 17. In Ratan Chand Burman v. Calcutta Improvement Trust (AIR 1991 Cal. 282) the Calcutta High Court struck down the proceedings for acquisition under a Town Planning Scheme which was not executed even after lapse of 26 years of the scheme. The Division Bench held that unexplained and inordinate delay is a relevant, if not a conclusive factor in determining the colourable exercise of power in the context of land acquisition proceedings. It must be noted that the proceeding for acquisition was not struck down on the ground that the scheme had lapsed in view of the fact that the land had not been acquired within the period prescribed under the Town Planning Act. In the decision in Indore Development Authority v. Balakrishna (1997 (9) SCC 321) the Act itself had provided by virtue of S.54 of the Act, that if the authorities do not commence the scheme within two years of the finalisation of the scheme and complete the same within five years from the date of sanction, the scheme itself would get lapsed. This decision is only relevant in the context of the fact that in the Town Planning Act in question, there is no provision corresponding to S.54 of the Madhya Pradesh Act referred to in that decision. 18. We have already referred to the relevant provisions of the Act. This decision is only relevant in the context of the fact that in the Town Planning Act in question, there is no provision corresponding to S.54 of the Madhya Pradesh Act referred to in that decision. 18. We have already referred to the relevant provisions of the Act. We do not find any provision in the Act to the effect that the scheme would lapse on the non-implementation of the scheme within a prescribed period. S.33 of the Town Planning Act only states that the Notification under S.12 of the Act which would also operate as a declaration under the Land Acquisition Act, 1089, would cease to be effective as a declaration under the Land Acquisition Act on the expiry of three years from the date of the Notification under S.12 of the Act. The Section also says that even though the notification under S.12 of the Town Planning Act would cease to operate as a declaration under S.6 of the Land Acquisition Act on the expiry of three years from the date of notification, it shall not be incumbent on the Government or on the authority concerned to take immediate steps for acquisition of lands included in the notified scheme. This in our view clearly indicates that the scheme does not by itself lapse on the expiry of three years from the date of notification under S.12 of the Town Planning Act. But the Calcutta High Court in Ratan Chand Burman v. Calcutta Improvement Trust(MR 1991 Cal. 282) held that undue delay in invoking the acquisition proceeding would enable the land owner to challenge the proposal for acquisition on the ground of unreasonable delay and colourable exercise of power. It may also enable him to challenge the scheme on the ground of placing of restrictions for unreasonably long period, and that its non-implementation within a reasonable period makes the scheme itself arbitrary, discriminatory and unconstitutional. We think that the question whether the lapse of time in a given case would lead to the striking down of the scheme itself or the granting of a declaration that the scheme is no longer in force, would depend upon the facts of that particular case. We think that the question whether the lapse of time in a given case would lead to the striking down of the scheme itself or the granting of a declaration that the scheme is no longer in force, would depend upon the facts of that particular case. It could not be laid down as a general proposition that on the expiry of three years from the date of notification under S.12 of the Town Planning Act, if further proceedings under the Land Acquisition Act are not completed, the scheme would automatically cease to be in force. To the extent such a view has been taken by some of the decisions referred to above, they are liable to be overruled. We hold that on the scheme of the Town Planning Act, the scheme itself would not lapse or would not cease to be in force merely on the ground that the notification under S.12 of the Act cease to have operation as a declaration under S.6 of the Land Acquisition Act in terms of S.33 of the Town Planning Act. 19. Whether the proceedings for acquisition if now initiated would be constitutionally invalid would arise only when the lands in the possession of the petitioner are sought to be acquired by invoking the provisions of the Land Acquisition Act. By virtue of the provisionsofS.33of the Town Planning Act, obviously the first respondent cannot rely on the notification under S.12 of the Town Planning Act in this case as a declaration under the Land Acquisition Act. The Notification has ceased to have such an operation. That may not prevent the State from seeking to acquire the lands by invoking the provisions of the Land Acquisition Act if the land is needed for a public purpose. But availability of such a power may not by itself justify the continuance of the restrictions imposed by S.16 of the Town Planning Act on the owners of land brought within the scheme. 20. In this case, the scheme was notified under S.12 of the Town Planning Act on 6.3.1984. When this Original Petition was filed, 11 years had elapsed from the date of that Notification. Now 15 years have elapsed. 20. In this case, the scheme was notified under S.12 of the Town Planning Act on 6.3.1984. When this Original Petition was filed, 11 years had elapsed from the date of that Notification. Now 15 years have elapsed. Even today, counsel for the Municipality was not in a position to submit that the scheme will be implemented immediately or that the lands concerned would be acquired for the purpose envisaged by the scheme within any specified time limit though the submitted that steps are being taken to implement the scheme. In the context of the indefiniteness in the implementation of the scheme and the stand adopted by the concerned Municipality, it may be open to the petitioners to challenge the scheme itself as having become arbitrary and unconstitutional since the restrictions imposed by the scheme have become oppressive and unreasonable. This may all the more be so since on behalf of the Government it is submitted that it is for the Municipality to complete the scheme and to take steps to acquire the lands. 21. In the Original Petition, the main prayer is to declare that the Town Planning Scheme has lapsed under the provisions of the Town Planning Act. The other reliefs prayed for are only reliefs consequent on the grant of the above relief. There is no prayer to quash the scheme or to declare it unconstitutional. No doubt, grounds are taken that the right of enjoyment of the petitioners is unnecessarily restricted and their right to property is infringed. But in the absence of specific prayers in that regard, we do not think that we would be justified in deciding in this Original Petition whether the particular scheme itself is liable to be struck down an having become violative of the constitutional righWs of the petitioners. We leave open that question. 22. But we do feel that the very object of framing a town planning scheme would tend to get defeated if the scheme is not implemented within a reasonable period. The Town Planning Act concerned, does not provide for the lapsing of the scheme sanctioned under it and notified under it on the ground that the same had not been implemented within a stipulated period. The Town Planning Act concerned, does not provide for the lapsing of the scheme sanctioned under it and notified under it on the ground that the same had not been implemented within a stipulated period. S.15(3) of the Act restricts the period of restriction imposed by that Section to two years in case the draft scheme is not prepared within two years of the publication of the notification of the resolution under S.8 of the Act the restriction will close. Though S.16 of the Act imposes an obligation on the owners of the land coming within the scheme not to do anything in their lands which will impede the implementation of the scheme notified, under S.12 of the Act, it imposes no time limit on such restriction. The un definite life given to a scheme notified under the Act without insistence on its implementation within a time frame certainly brings hardship to the owners of land included in the scheme. It may be necessary for the second respondent and the concerned authorities to consider whether a specific period shall not be statutorily prescribed for the implementation of a scheme notified under the Act after due sanction of it by the Government so as to free the owners from the shackles of restriction. But, that of course, is a matter for the legislature and we can only point out that it appears to be necessary for the State to consider whether any such safeguard in the matter of enjoyment of his own land shall not be provided to the citizen by compelling the conterned Municipality to implement the scheme within a period to be fixed by the stature itself. Subject to the reservation contained in paragraph 21 of this judgment and the observations above, we dismiss this Original Petition. We make no order as to costs.