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Madhya Pradesh High Court · body

2006 DIGILAW 1327 (MP)

Radheshyam v. State of M. P.

2006-11-23

S.K.KULSHRESTHA, S.K.SETH

body2006
ORDER Kulshrestha, -- 1. This order shall also govern the disposal of WA No.271/2006, WA No.27282006, WA No.289/2006, WA No.290/2006, WA No.291/2006, WA No.292/2006, WA No.293/2006, WA No.294/2006, WA No.326/2006, WA No.356/2006, WA No.357/2006, WA No.359/2006, WA No.360/2006, WA No.361/2006, WA No.362/2006, WA No.363/2006, WA No.405/2006, WA No.406/2006, WA No.491/2006 and WA No 420/2006, However, for the sake of convenience, the facts are referred to from WA No.433/2006 and WA No.271/2006. 2. Though the record of each appeal is quite voluminous, on account of the able assistance of the counsel for the parties, it appears that basically the appellants have challenged the order of the respondents in so far as it dispenses with the enquiry under section 5A of the Land Acquisition Act while applying the provisions of section 17(1) of the Land Acquisition Act, 1894 (hereinafter referred as to 'the Act). 3. The acquisition has been made for implementation of Scheme No. 140 of the Indore Development Authority. Though the appeals also challenge the validity of the Scheme, before us, the matter was confined to assail the proceedings of acquisition. In particular, the power exercised by the State Government (Commissioner as the delegate of the State Government) in exercise of section 17(4) to dispense with the summary enquiry under section 5A of the Act, has been assailed. 4. Respondent, the Indore Development Authority, has been constituted under section 38 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as 'the Adhiniyarm for implementing the proposals in the development plan, preparing one or more two development schemes and acquisition and development of land for the purpose of expansion or improvement of the area specified in the notification under sub-section (1) of section 38 subject to the provisions of the Act. The town development scheme can be framed in respect of the matters enumerated in section 49 of the Adhiniyam. The town development scheme can be framed in respect of the matters enumerated in section 49 of the Adhiniyam. According to section 49, a town development scheme may make provisions for acquisition, development and sale or leasing of land for the purpose of town expansion; acquisition, relaying out of rebuilding, or relocating areas which have been badly laid out or which has developed or degenerated into a slum; acquisition and development of land for public purposes such as housing development, development of shopping centres, cultural centres and administrative centres; acquisition and development of areas for commercial and industrial purposes; undertaking of such building or construction work as may be necessary to provide housing, shopping, commercial or other facilities; acquisition of land and its development for the purpose of laying out or remodelling of road and street patterns; acquisition and development of land for playgrounds, parks, recreation centres and stadia; reconstruction of plots for the purpose of buildings, roads, drains, sewage lines and other similar amenities; and any other work of a nature such as would bring about environmental improvements which may be taken up by the authority with the prior approval of the State Government. 5. We have referred to section 49 of the Adhiniyam as the learned counsel for the appellants contended that a scheme under section 50 of the Adhiniyam can be framed only for the purpose of implementation of the Master Plan. Though section 38 of the Adhiniyam provides for the duty of implementing the proposals in the development plan, preparing one or more town development schemes and acquisition and development of land for the purpose of expansion or improvement etc. as the primary function of the Town and Country Development Authority, the implementation of the provisions made in the Master Plan is only one of the functions enumerated in section 38 and section 49 of the Adhiniyam. Reference was made to section 2(u) of the Adhiniyam defining town development scheme as a scheme prepared for the implementation of the provisions of a development plan by the Town and Country Development Authority and includes scheme, the fact that it also embraces within the meaning of the town development scheme, the scheme, also implies that it is not only for implementation of the Master Plan that the scheme is framed. 6. The power to prepare scheme is provided by section 50 of the Adhiniyam. 6. The power to prepare scheme is provided by section 50 of the Adhiniyam. Sub-section (1) provides for declaration of the intention to prepare a town development scheme. Section 50 of the Adhiniyam reads as under : "50. Preparation of town development schemes -- (1) The Town and Country Development Authority may, at any time, declare its intention to prepare a town development scheme. (2) Not later than thirty days from the date of such declaration of intention to make a scheme, the Town and Country Development Authority shall publish the declaration in the Gazette and in such other manner as may be prescribed. (3) Not later than two years from the date of publication of the declaration under sub-section (2) the Town and Country Development Authority shall prepare a town development scheme in draft form and publish it in such form and manner as may be prescribed together with a notice inviting objections and suggestions from any person with respect to the said draft development scheme before such date as may be specified therein, such date being not earlier than thirty days from the date of publication of such notice. (4) The Town and Country Development Authority shall consider all the objections and suggestions as may be received within the period specified in the notice under sub-section (3) and shall, after giving a reasonable opportunity to such persons affected thereby as are desirous of being heard, or after considering the report of the committee constituted under sub-section (5) approve the draft scheme as published or make such modifications therein as it may deem fit. (5) Where the town development scheme relates to reconstitution of plots, the Town and Country Development Authority shall, notwithstanding anything contained in sub-section (4), constitute a committee consisting of the Chief Executive Officer of the said authority and two other members of whom one shall be representative of the Madhya Pradesh Housing Board and the other shall be an officer of the Public Works Department not below the rank of an Executive Engineer nominated by the Chief Engineer, Public Works Department for the purpose of hearing objections and suggestions received under sub-section (3). (6) The committee constituted under sub-section (5) shall consider the objections and suggestions and give hearing to such persons as are desirous of being heard and shall submit its report to the Town & Country Development Authority within such time as it may fix along with proposals to – (i) define and demarcate the areas allotted to or reserved for public purpose; (ii) demarcate the reconstituted plots; (iii) evaluate the value of the original and the reconstituted plots; (iv) determine whether the areas reserved for public purpose are wholly or partially beneficial to the residents within the area of the scheme; (v) estimate and apportion the compensation to or contribution from the beneficiaries of the scheme on account of the reconstitution of the plot and reservation of portions for public purpose; (vi) evaluate the increment in value of each reconstituted plot and assess the development contribution leviable on the plot holder: Provided that the contribution shall not exceed half the accrued increment in value; (vii) evaluate the reduction invalue of any reconstituted plot and assess the compensation payable therefor. (7) ,Immediately after the town development scheme is approved under sub-section (4) with or without modifications the Town and Country Development Authority shall publish in the Gazette and in such other manner as may be prescribed a final town development scheme and specify the date on which it shall come into operation." 7. From the bare perusal of section 50, it becomes apparent that under sub-section (2) the Town and Country Development Authority is obliged to publish the declaration in the Gazette and in such other manner as may be prescribed within thirty days from the declaration made under subsection (1) thereof. The authority has, then, to proceed to prepare a draft scheme under sub-section (3) and publish it for inviting objections and suggestions before the date specified in the notification. It is only after the objections and suggestions are considered, that the Town and Country Development Authority, after hearing the parties desirous of being heard, approve the draft scheme as published or make some modifications therein as it may deem fit. It is only after the notification prescribed and consideration of the objections and also hearing the persons. who seek hearing, the scheme is finalized and finally published under sub-section (7) of section 50. It is only after the notification prescribed and consideration of the objections and also hearing the persons. who seek hearing, the scheme is finalized and finally published under sub-section (7) of section 50. Section 51 of the Adhiniyam provides for revision and authorizes the Director, Town and Country Planning Department to decide such revisions. The Director has the power after examining the record to pass such order as he thinks fit and his order shall be final. 8. The petitioners (appellants) concede that in so far as the Scheme No.140 of the respondent-IDA was concerned, they had challenged its validity before the Director under section 51 but without success. We may also refer to section 55 of the Adhiniyam which provides that town development scheme shall be deemed to be a land needed for a public purpose within the meaning of the Land Acquisition Act. Thus, after the finalized scheme is published under section 50(7), no exercise is required to elicit whether the scheme serves any public purpose or not. The scheme is required to be implemented within the time frame prescribed by section 54. Section 54 of the Adhiniyam reads as under: "54. Lapse of Scheme -- If the Town & Country Development Authority fails to commence implementation of the Town Development Scheme within a period of two years or complete its implementation within a period of five years from the date of notification of the final scheme under section 50, it shall, on expiration of the said period of two years or five years, as the case may be, lapse: Provided that, if a dispute between the authority and parties, if any, aggrieved by such scheme, is brought before a Court or Tribunal of competent jurisdiction, for consideration, the period for which such dispute pending before such Court or Tribunal shall not be reckoned for determination of the lapse of the scheme." 9. It is thus clear that the implementation of the scheme must commence within a period of two years and the completion of the scheme should be within five years. Under these circumstances, it is necessary for a development authority to act promptly after framing of the scheme though making a request for acquisition of land by itself is a step towards implementation of the scheme. 10. Under these circumstances, it is necessary for a development authority to act promptly after framing of the scheme though making a request for acquisition of land by itself is a step towards implementation of the scheme. 10. For the purpose of acquisition, the Town and Country Development Authority has been given option to acquire land by agreement or to make a request for acquisition of the land under the provisions of the Land Acquisition Act. Section 56 of the Adhiniyam reads as under: "56. Acquisition of land for Town and Country Development Authority -- The Town and Country Development Authority may at any time after the date of publication of the final town development scheme under section 50 but not later than three years therefrom, proceed to acquire by agreement the land required for the implementation of the scheme and, on its failure so to acquire, the State Government may, at the request of the Town and Country Development Authority, proceed to acquire such land under the provisions of the Land Acquisition Act, 1894 (No.1 of 1894) and on the payment of compensation awarded under that Act any other charges incurred by the State Government in connection with the acquisition, the land shall vest in the Town and Country Development Authority subject to such terms and conditions as may be prescribed." 11. From the perusal of section 56, it is manifest that the Town & Country Development Authority can either acquire land by agreement or make a request for its acquisition. The section also provides that on payment of compensation awarded under the Act and any other charges incurred by the State Government in connection with the acquisition, the land shall vest in the Town and Country Development Authority subject to such terms and conditions as may be prescribed. 12. The Scheme No.140 was notified under section 50(2) of the Adhiniyam on 2.9.2002 while the final notification was issued on 14.3.2003 under section 50(7) of the Adhiniyam. In accordance with the provisions made in the scheme, land required therefor was 69.109 hectares. Out of this land, the Development Authority took possession of 34.051 hectares of land on 12.8.2004; 30.683 hectares on 14.2.2005; 1.322 hectares on 16.2.2005 and 1.250 hectares on 9.9.2005. Thus, as on date, the Development Authority is in possession of 67.606 hectares of land for implementation of the scheme. Out of this land, the Development Authority took possession of 34.051 hectares of land on 12.8.2004; 30.683 hectares on 14.2.2005; 1.322 hectares on 16.2.2005 and 1.250 hectares on 9.9.2005. Thus, as on date, the Development Authority is in possession of 67.606 hectares of land for implementation of the scheme. Learned senior advocate Shri A.S. Kutumbale submits that in implementing the scheme, a sum ofRs.8 crores has already been spent out of a total sum of Rs.40 crores reserved for the scheme. He has further submitted that award has been made under section 11 of the Act on 6.8.2005 and towards payment of compensation; the authority has already deposited 9.40 crores. While the learned senior advocate contends that possession of the land, except the land admeasuring .900 hectares which was released before the sanction granted by the Director, has been taken, learned counsel for the appellants submits that there was stay from the Supreme Court and it was during the period the stay was in operation that the possession was taken. We defer the said disputed question. We have already stated hereinabove that IDA made a request under the provisions of section 56 for acquisition of the land for the purpose of the scheme. In that connection, notification under section 4 was published on 20.6.2003 and provisions of section 17(1) were applied. It was also stated that the enquiry under section 5A was dispensed with. Immediately thereafter, a declaration was issued under section 6 on 5.8.2003. However, the same having been challenged by the petitioners, stay was granted on 27.1.2004 by the learned Single Judge and it was continued on 9.2.2005. The Supreme Court granted stay on 14.3.2005 and after the matter was directed to be agitated before this Court, the stay was continued for two months and thereafter the same was extended by this Court. 13. Coming to the question that applicability of section 5A of the Act was not attracted in the case in hand and the requirement of implementation of sub-section (4) of section 17 of the Act was not fulfilled, it would be, advantageous to reproduce section 5A and section 17 of the Land Acquisition Act. "5A. 13. Coming to the question that applicability of section 5A of the Act was not attracted in the case in hand and the requirement of implementation of sub-section (4) of section 17 of the Act was not fulfilled, it would be, advantageous to reproduce section 5A and section 17 of the Land Acquisition Act. "5A. Hearing of Objections -- (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being, needed or likely to be needed for a public purpose or for a company may, (within thirty days from the date of the publication of the notification) object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard (in person or by any person authorized by him in this behalf) or by pleader and shall after hearing all such objections and after making such further enquiry, if any, as he thinks necessary, (either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him for the decision of that Government). The decision of the appropriate Government on the objections shall be final. (3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act. 17. Special powers in cases of urgency -- (1) In case of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1) (take possession of any land needed for a public purpose). Such land shall thereupon (vest absolutely in the Government) free from all encumbrances. Such land shall thereupon (vest absolutely in the Government) free from all encumbrances. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or that station, or of providing convenient connection with or access to any such station (or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity) (or whenever owing to a like emergency it becomes necessary for the State Government to acquire the immediate, possession of any land for the purpose of maintaining traffic over a public road), the Collector, may, immediately after the publication of the notice mentioned in sub-section (1), and with the previous sanction of the appropriate Government enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances. (3) In every case under either of the proceeding sub-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24 and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. 3A. Before taking possession of any land under sub-section (1) or sub-section (2) the Collector shall without prejudice to the provisions of sub-section (3), -(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2) (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. 3B. 3B. The amount paid or deposited under sub-section (3A), shall, be taken into account for determining the amount of compensation required to be tendered under section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under section 11, the excess may, unless refunded within three months from the date of the Collector's award, be recovered as an arrear of land revenue). (4) In the case of any land to which, in the opinion of the appropriate Government the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time (after the date of the publication of the notification) under section 4, subsection (1)." 14. As clear from the caption, section 17 of the Act makes provision in case of urgency. Sub-section (1) provides for urgency for taking possession of any land needed for a public purpose. Such lands thereupon vest absolutely in the Government free from all encumbrances. Sub-section (2) makes provision for unforeseen emergency. If the provision of subsection (1) or sub-section (2) are invoked, sub-section (4) empowers the appropriate Government to direct that the provisions of section 5A shall not apply and if it does so direct, a declaration may be made under section' 6 in respect of the land- at any time after the date of publication of notification under section 4 sub-section (1). Learned counsel for the appellants has referred to the decision of the Supreme Court in Union of India and others v. Mukesh Hans [ AIR 2004 SC 4307 ], to buttress his argument that sub-section (4) is the discretion to the Government to apply the provisions of that sub-section and to dispense with the enquiry under section 5A of the Act which postulates that the discretion would be exercised on some objective criteria recorded in writing. In the above case, on finding that in almost all the notings in the file there is no reference to the need for invoking section 17(4). The findings of the High Court that the decision of the Lt. Governor to dispense with the 5A enquiry suffers from the vice of non-application of mind. Paragraph 37 of the report reads as under : "37. The findings of the High Court that the decision of the Lt. Governor to dispense with the 5A enquiry suffers from the vice of non-application of mind. Paragraph 37 of the report reads as under : "37. We will now refer to the facts of the present case. We make it clear that this consideration of facts by us is not for the purpose of finding out whether the stated public purpose is in reality a public purpose or not, nor is it for the purpose of finding out whether there was an urgency as contemplated under section 17(1) of the Act, but limited to the question of whether there was any material available before the Lt. Governor pursuant to whose order section 4( I) notification stated that 5A inquiry is dispensed with. Since formation of an opinion and application of mind cannot be assessed except by looking into the proceedings which culminated in the impugned order, we intend considering only such facts as is necessary for this limited purpose. The facts of the present case as found from the records shows that the Anjuman-Saire-e-Gul Faroshan the committee that organizes this festival was using some land in village Mehrauli for conducting its concluding ceremony. It is for this purpose it sought 4000 sq. yards of land in khasra No.II5I/3 (new) and 1665 (old) of said village. It is also found from the record ever since the revival of the festival the concluding programme was being continued in a piece of land situated in the said khasra of Mehrauli village which is now sought to be acquired along with certain other lands. There is no material on record to show that either the said festival has been discontinued for want of land or the owners of the land where the festival has its concluding ceremony are preventing the utilization of that land for the said purpose. We have also noticed hereinabove that an earlier attempt to acquire 40 bighas of the land for the very same purpose was allowed to be lapsed by the authorities concerned by efflux of time which is also a relevant factor to be taken note by the Lt. Governor when he took the decision to dispense with the 5A inquiry but the same was not placed before him. Governor when he took the decision to dispense with the 5A inquiry but the same was not placed before him. These facts coupled with the findings of the High Court that in almost all the notings in the file there is no reference to the need for invoking section 17(4) indicates that the Lt. Governor was not apprised of all the necessary and relevant facts before he took the decision in question. Therefore, in our opinion, the findings or the High Court that the decision of the Lt. Governor to dispense with the 5A inquiry suffered from the vice of non-application of mind has to be upheld. For the reasons stated above, these appeals rails and are dismissed." 15. Learned counsel for the appellants has invited attention to the documents filed in WA No.271/2006 to show that applicability of section 17 (4) of the Act was not even proposed. The request was made by the IDA by Annexure R-9 in WA No.271/2006. Learned counsel has taken us through this letter of request to demonstrate that though it was proposed to apply section 17 (1) along with the notification under section 4, no proposal was made to dispense with the enquiry under section 5A of the Act. Upon receipt of this letter, the Collector by Annexure R -3/5 in W A No.271/2006 requested the Commissioner for giving permission for applying section 4(1) along with section 17(1) urgency clause for acquisition of 69.109 hectare land of village Piplya, Indore. In this letter also there was no proposal for dispensing with the summary enquiry under section 5A of the Act. The Commissioner, as delegate of the power of the State Government, considered the request and by his letter dated 24.5.2003 permitted acquisition of 69.1 09 hectares of land and also granted permission to apply section 17(1) of the Act. The counsel, therefore, contends that without there being any proposal, the authorities have applied section 17(4) in notification under section 4 to dispense with the enquiry under section 5A of the Act. 16. The question that arises before us is as to whether at this distance of time, the Court should interfere while the authority has already taken possession of the land required for the scheme and has proceeded with the implimentation thereof and has already spent Rs.8 crores. 16. The question that arises before us is as to whether at this distance of time, the Court should interfere while the authority has already taken possession of the land required for the scheme and has proceeded with the implimentation thereof and has already spent Rs.8 crores. Though illegality in not applying section 5A is patent and glaring as nothing has been produced before this Court in justification of the discretion exercised, the scheme cannot be impleded at this distance of time. Though in connection with the framing of the scheme, the petitioner had the opportunity of hearing before the scheme was framed in the draft form and also before the Director in revision, since section 4 notification is the foundation of the acquisition in which while applying section 17(1), the respondents have also applied the provisions of sub-section (4), the situation has arisen where one has to be pragmatic and to find a solution so that the grievance of the petitioners-appellants is redressed and at the same time no harm is done to the scheme already implemented. The area of land belonging to the petitioners is small parcel of land and for the sake of small parcel of land; the entire scheme and acquisition for 69.109 hectares of land cannot be scarified. Learned counsel submits that in some cases Director, Town and Country Planning Department has excluded the land of Mayadevi, Tarachand and Prasad Chand Jain in WA No.357/2006. Learned senior advocate for the respondents concedes that a parcel of land admeasuring .900 hectares has been released before the sanction has been granted by the Director. Learned counsel has also referred to the decision in Abhey Ram (dead) by LRs and others v. Union of India and others [ AIR 1997 SC 2564 ], in which it has been held that in such cases only petitioners are entitled to relief and the benefit does not involve any others. Paragraph 10 of the report reads as under: 10. The question then arises is : whether the quashing of the declaration by the Division Bench in respect of the other matters would ensure the benefit to the appellants also? Though, prima facie, the argument of the learned counsel is attractive, on deeper consideration, it is difficult to give acceptance to the contention of Mr.Sachhar. The question then arises is : whether the quashing of the declaration by the Division Bench in respect of the other matters would ensure the benefit to the appellants also? Though, prima facie, the argument of the learned counsel is attractive, on deeper consideration, it is difficult to give acceptance to the contention of Mr.Sachhar. When the Division Bench expressly limited the controversy to the quashing of the declaration qua the writ petitioners before the Bench, necessary consequence would be that the declaration published under section 6 should stand upheld." .- 17. As discussed hereinabove, the Authority did not exercise the discretion required under sub-section (4) of section 17 of the Act and, therefore, the dispensing with section 5A enquiry was not proper. However, as observed above, at this distance of time, though the petitioners are entitled to relief, we do not propose to quash any notification including the declaration under section 6 of the Act. We may reiterate that declaration under section 6 can be issued from time to time in respect of different parcels of land covered by the same notification under section 4 of the Act. Thus, the publication of notification under section 6 does not make it sacrosanct and the same can be altered, if it becomes absolutely necessary. Under these circumstances, we are of the opinion that the writ petitions should be granted an opportunity to raise their objections under section 5A of the Act before appropriate authority within fifteen days from the date of this decision and the authority concerned shall decide the objections within a fortnight thereafter. If after decision of the objections of the petitioners, the authority is of the view that land of any petitioner is to be excluded, only in that event it shall make request to the appropriate authority to modify the declaration under section 6 or to issue order for exclusion of the land under section 48. 18. With the above liberty to the petitioners (appellants) to approach the appropriate authority under section 5A, these appeals are disposed of with no order as to costs. CC within 3 days.