Prakash Amichand Shah Vs. State of
Gujarat [1981] INSC 126 (24 July 1981)
GUPTA, A.C.
GUPTA, A.C.
SEN, A.P. (J)
CITATION: 1981 AIR 1597 1982 SCR (1) 81 1981
SCC (3) 508 1981 SCALE (3)1084
CITATOR INFO :
RF 1986 SC 468 (5)
ACT:
Bombay Town Planning Act, 1954-Sections 32,
33, 34, 65 and 69-Scope of. Words and phrases-"injurious affection"-
Meaning of.
HEADNOTE:
The Bombay Town Planning Act, 1954 (which was
made applicable to the State of Gujarat) provides for the compulsory
acquisition of land and payment of compensation for the land so acquired for
the development or re- development or improvement of the entire area within the
jurisdiction of a local authority such as a municipal corporation or a
municipality. The Town Planning Scheme prepared under the Act may make
provision for laying out new streets or roads, allotment or reservation of land
for roads, open spaces and such other matters not inconsistent with the objects
of the Act. Before proceeding to acquire any land for town planning purposes, a
local authority, by resolution, must declare its intention to make a town
planning scheme and publish it in the manner prescribed. The draft scheme may
contain proposals such as to form a re- constituted plot by the alteration of
the boundaries of an original plot, to form a reconstituted plot by the
transfer, wholly or partly, of the adjoining land, to allot a plot to any owner
dispossessed of a land in furtherance of the scheme. Any person affected by the
scheme may communicate to the local authority concerned any objection relating
to such scheme. The scheme is then forwarded to the State Government for the
requisite sanction.
The scheme of the Act envisages the
appointment of a Town Planning Officer and constitution of a Board of Appeal.
It is the duty of the Town Planning Officer
to draw up a final scheme in accordance with the draft scheme. When the final
scheme comes into force all lands required by the local authority shall vest
absolutely in that authority free from all encumbrances and all rights in the
original plots which have been reconstituted shall determine and the
reconstituted plots shall become subject to the rights settled by the Town
Planning Officer.
Section 64 (1) enumerates the sums payable or
spent and the expenses incurred by the local authority which are to be included
in the costs of a town planning scheme.
Under section 65 increment means the amount
by which at the date of the declaration of intention to make a scheme the
market value of a final plot calculated on the basis as if the improvement
contemplated in the scheme had stood completed on that date. Provision is made
in section 67 to make adjust- 82 ment between the rights to compensation for
loss of land suffered by the owner and the liability to make contribution to the
finance of the scheme. Compensation payable to any owner for loss of lands has
to be determined on the basis of the market value of the land at the date on
which the declaration of intention to make a scheme was made. Section 69
contemplates that the owner of any property or right which is injuriously
affected by the making of a town planning scheme shall be entitled to obtain
compensation from the local authority or from any person bona fide or partly
from such person as the Town Planning Officer may in each case determine.
Section 32 enumerates duties of the Town
Planning Officer and section 33 provides that except in matters arising out of
clauses (v), (vi), (vii), (ix), (x) and (xiii) of section 32 (1) every decision
of the Town Planning Officer shall be final and conclusive and binding on all
persons. An appeal from the decision of the Town Planning Officer under the six
clauses mentioned in section 33 lies to the Board of Appeal.
The Surat Municipal Corporation declared its
intention to make a town planning scheme under section 22 of the Bombay Town
Planning Act, 1954. The draft scheme published included an area of 1.37 lac
square meters of which the appellant was the lessee.
Dissatisfied with the compensation awarded to
him by the Town Planning Officer the apportionment of the compensation between
the lessor and lessee and the propriety of reserving such a large area of land
for the scheme the appellant preferred an appeal under section 34 read with
section 32 (1) of the Act to the Board of Appeal. The Board rejected the appeal
as being not maintainable on the ground that the Act did not provide an appeal
from a decision of the Town Planning Officer on matters dealt with by him in
the impugned order.
Agreeing with the Board of Appeal the High
Court dismissed the appellant's writ petition.
In the appeal to this court it was contended
on behalf of the appellant that the Town Planning Officer's decision was
appealable under clause (viii) or clause (xiii) of section 32(1) because he has
a duty to calculate the increment to accrue in respect of each plot included in
the final scheme in accordance with the provision of section 65.
Dismissing the appeal, ^
HELD: The High Court was right in holding
that the decision of the Town Planning Officer determining the amount of
compensation in the appellant's case was not appealable.
[96 F] The decision of the Town Planning
Officer is final and conclusive in all matters referred to in the various
clauses of section 32 (1) except those mentioned in clauses (v), (vii), (viii),
(ix), (x) and (xiii). [94 E] The increment referred to in section 65 is the
difference in the market value of the same final plot with the improvements and
without the improvements on 83 the date of the declaration of intention to make
a scheme.
The value of the original plot does not arise
for consideration under clause (viii). Form B referred to in clause (v) of rule
17 of the Bombay Town Planning Rules, 1955 makes it clear that the increment is
the difference in value of the same final plot in its developed and undeveloped
condition. This form keeps the valuation of the original plot distinct from
that of the final plot. The appellant's case cannot fall under clause (viii) of
section
32. [94 G-99 B] What is contemplated by
section 69 is that the property or right which is injuriously affected by the
making of a town planning scheme is a property or right other than that
acquired for the purposes of the scheme. The property or right affected remains
with the owner who is entitled to compensation for such injurious affection.
When under the Act a plot of land is taken for the purposes of a town planning
scheme it cannot be said that land itself is injuriously affected. [95 C-E]
There is no compelling reason for restructuring clause (xiii) suggested by the
appellant. Taking acquisition of land to mean "injurious affection"
of the land acquired would be inconsistent with the entire scheme of the Act.
[95 F] In determining the amount of
compensation awarded for land acquired under the Land Acquisition Act, that Act
requires the Court to take into consideration the damage sustained by the
"person interested" by reason of the acquisition injuriously
affecting his other property." A "person interested" means a
person claiming an interest in compensation to be made on account of the
acquisition of land under the Land Acquisition Act and the damage is for
injurious affection of some property other than the land acquired. There is
nothing in the Act to suggest that the generally accepted meaning of the expressions
"injurious affection" used in the Land Acquisition Act should be
construed differently in this Act. [95 G-96 B] The owner of an original plot
who is not provided with a plot in the final scheme gets his right to
compensation from section 71. The principle for determining the compensation is
the same whether an owner of land is given a reconstituted plot or not.
Compensation is payable on the basis of the market value of the plot at the
date of declaration of the intention to make a scheme. In the appellant's case
it would be the value of the original plot and not the final plot. In
determining the difference under section 32 (1) (iii) the Town Planning Officer
has to find out the market value of each of the original plots at the date of
the declaration of intention to make a scheme. The Act contains necessary
provisions for estimating the compensation payable to an owner of land who has
not been given a reconstituted plot. [96 C-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1224 of 1977.
Appeal by special leave from the judgment and
order dated the 3rd September, 1976 of the Gujarat High Court in Special Civil
Appln. No. 1501 of 1974 84 F.S. Nariman, Dr. Y.S. Chitale, K.S. Nanavati, C.R.
Gandhi, P.H. Parekh and Miss Vineeta Caprihan
for the Appellant.
Soli J. Sorabjee, G.N. Desai and M.N. Shroff
for Respondent No. 1 G.N. Desai, Prashant G. Desai and S.C. Patel for
Respondent No. 2 S.K. Dholakia and R.C. Bhatia for Intervener-Surat
Municipality.
The Judgment of the Court was delivered by
GUPTA J. On June 26, 1965 the Surat Municipal Corporation, then called Surat
Borough Municipality, declared its intention to make a town planning scheme
under section 22 of the Bombay Town Planning Act, 1954 (hereinafter referred as
the Act). This was Town Planning Scheme Surat No. 8 (Umarwada). On July 4, 1967
a draft scheme was published which included among other lands an area
admeasuring 1,37,961 sq. meters of which appellant as Karta of a Hindu
undivided family was the lessee. On May 10, 1968 Government of Gujarat granted
sanction to the draft scheme. Before the Town Planning Officer the appellant
claimed compensation for deprivation of his right in the land at Rs. 50 per sq.
yd. By his order made on November 4, 1971 the Town Planning Officer awarded
compensation to the appellant at the rate of Rs. 2.40 p. per sq. mt.; the total
compensation awarded was Rs. 3,31,455. Not satisfied with the decision of the
Town Planning Officer the appellant preferred an appeal. Section 34 read with
section 32(1) of the Act provides an appeal from the decision of the Town
Planning Officer on certain specified matters to a Board of Appeal. Before the
Board of Appeal the appellant reduced his claim to Rs. 9.50 p. per sq. mt. The
appellant's grievance was that the compensation awarded was inadequate and
further that the apportionment of compensation between the lessor and the
lessee was not proper. He also questioned the propriety of reserving such a
large area of land for the scheme. The Board of Appeal held that the appeal was
not maintainable as the Act did not provide an appeal from a decision of the
Town Planning Officer on matters dealt with by him in his order dated November
4, 1971. The appellant then challenged the order of the Board of Appeal before
the Gujarat High Court by filing a writ petition in which certain provisions of
the Act were also challenged as unconstitutional and it was claimed 85 that the
town planning scheme was consequently invalid. The Gujarat High Court dismissed
the writ petition agreeing with the Board of Appeal that the appeal was
incompetent. The constitutional questions raised in the writ petition could not
be decided as Emergency was then in force in the country and rights conferred
by Articles 14,19 and 31 of the Constitution on which the appellant's
contentions were based remained suspended at the time. The High Court also
relied on the decision of this Court in State of Gujarat v. Shri Shantilal
Mangaldas which had upheld the validity of the Act.
The appeal before us is by special leave. Mr.
Nariman for the appellant submitted that in case we held that the appeal
preferred by his client before the Board of Appeal was maintainable he would
not press the grounds questioning the constitutional validity of the Act at
this stage and the matter should then go back to the Board of Appeal for a
decision on the adequacy of the Compensation; if however we found that the
Board of Appeal was right in holding that the appeal was not maintainable, he
would then urge the grounds challenging the validity of the Act.
The question is whether the order of the Town
Planning Officer determining the amount of compensation payable to the
appellant falls within any of the appealable clauses of section 32(1). To be
able to answer the question it will be necessary to examine the various clauses
of section 32(1) and also certain other provisions of the Act. The scheme of
the Act has been analysed by this Court in State of Gujarat v. Shantilal
Mangaldas (supra) and earlier in Maneklal Chhottalal and others v. M.G. Makwana
and others; we will not attempt another comprehensive survey of all the
provisions of the Act but refer to those of them which have some bearing on the
question that falls to be decided. Mr. Nariman drew our notice to the decision
of this Court in State of Karnataka v. Shri Ranganatha Reddy where Untwalia, J,
speaking for the court said at page 652 of the report that in Rustom Cavasjee
Cooper v. Union of India, this Court apparently seeking to explain Shantilal's
case had "in substance" overruled the decision. Even if Shantilal's
case was 86 overruled, that was on another point and the analysis of the scheme
of the Act made in Shantilal cannot be questioned.
The long title of the Act states that it is
an "Act to consolidate and amend the law for the making and execution of
town planning schemes". The Act has been made applicable to the State of
Gujarat. It is an Act providing for compulsory acquisition of land and payment
of compensation for the land taken. Some of the terms and expressions defined
in section 2 of the Act are relevant. Section 2 (2) defines "development
Plan" as meaning a plan for the development or redevelopment or
improvement of the entire area within the jurisdiction of a local authority
prepared under section 3. Section 3 requires every local authority to carry out
a survey of the area within its jurisdiction and prepare and publish a
development plan and submit it to the State Government for sanction.
Sub-section (4) of section 2 defines local authority as a municipal corporation
constituted under the Bombay Provincial Municipal Corporation Act, 1949 or a
municipality constituted or deemed to be constituted under the Gujarat
Municipalities Act, 1973. Section 2 (9) defines "reconstituted plot"
as a plot which is in any way altered by the making of a town planning scheme.
Chapter III of the Act provides for the making of town planning schemes.
Sub-section (2) of section 18 which occurs in this chapter states that a town
planning scheme may make provisions for any of the matters specified in clauses
(a) to (k) of the sub-section. These matters include laying out of land,
reclamation of unhealthy areas, laying out new streets of roads, construction
and removal of buildings, bridges and other structures, providing for drainage,
lighting and water supply, allotment or reservation of land for roads, open
spaces, schools, markets and public purposes of all kinds. Clause (1) says that
apart from the matters specified, the town planning scheme may provide for
"such other matter not inconsistent with the objects of this Act as may be
prescribed".
Chapter IV which contains section 21 to
section 30 bears the heading "Declaration of Intention to Make a Scheme
and Making of a Draft Scheme". Under section 22 a local authority may by
resolution declare its intention to make a town planning scheme and is required
to publish the scheme in the prescribed manner and dispatch a copy thereof to
the State Government. Section 23 (1) provides that following the declaration of
intention to make a scheme, the local authority shall make a draft scheme for
the area 87 in respect of which the declaration has been made and publish it in
the prescribed manner. Section 25 mentions the particulars that a draft scheme
shall contain; they include among other things, -the area, ownership and tenure
of each original plot; the extent to which it is proposed to alter the
boundaries of original plots; and an estimate of the net cost of the scheme to
be borne by the local authority.
Sub-section (1) of section 26 says that in
the draft scheme the size and shape of every reconstituted plot shall be
determined; as far as possible, to render it suitable for building purposes and
where the plot is already built upon, to ensure that the building complies with
the provisions of the scheme as regards open spaces. For the purpose of sub-
section (1) the draft scheme may contain proposals which are enumerated in
clauses (a) to (e) of sub-section (2) of the section. We may here refer to
clauses (a), (b) and (d):
"(a) to form a reconstituted plot by the
alteration of the boundaries of an original plot;
(b) to form a reconstituted plot by the
transfer wholly or partly of the adjoining lands;
(c) ... ... ...
(d) to allot a plot to any owner dispossessed
of land in furtherance of the scheme.
(e) ... ... ...
Under section 27, within one month from the
date of publication of the draft scheme, any person affected by such scheme may
communicate in writing to the local authority any objection relating to such
scheme which the local authority has to consider. Section 28 (1) requires the
local authority to submit the draft scheme together with the objections to the
State Government and at the same time apply for its sanction. Under sub-section
(2) the State Government may within six months from the date of the submission
of the draft scheme either sanction such scheme with or without modifications
and subject to such conditions as it may think fit to impose or refuse to give
sanction.
Chapter V which includes section 31 to
section 43 provides for the appointment of the Town Planning Officer and
constitution of the Board of Appeal. Within one month from the date on which
the sanction of the State Government to the draft scheme is 88 published, the
State Government is required under section 31 (1) to appoint a Town Planning
Officer. The duties of the Town Planning Officer are enumerated in section 32
(1). The provisions of sections 32, 33 and 34 have a direct bearing on the
question of appealability of the Town Planning Officer's decision, but we think
it would be more helpful for appreciating the contentions raised on behalf of
the appellant if we referred to certain other provisions of the Act before
turning to the aforesaid section in Chapter V. We need only mention here that
drawing up the final scheme in accordance with the draft scheme is one of the
duties of the Town Planning Officer who is required to forward the final scheme
to the State Government for sanction. In Chapter VI section 53 is the only
relevant provision. Section 53 lays down:
"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 reconstituted shall determine and the reconstituted plots shall become
subject to the rights settled by the Town Planning Officer".
Chapter VIII deals with "Finance".
It contains, inter alia, provisions specifying the principles on which compensation
for the land taken is to be determined. This chapter includes section 64 to
section 78. Section 64 (1) enumerates in clauses (a) to (f) the sums payable or
spent and the expenses incurred by the local authority which are to be included
in the costs of a town planning scheme. Clause (d) mentions the sums payable as
compensation for land reserved or designated for any public purpose or purposes
of the local authority. Clause (f) of section 64 (1) reads as follows:
"any amount by which the total of the values
of the original plots exceeds the total of the values of the plots included in
the final scheme, each of such plots being estimated at its market value at the
date of the declaration of intention to make a scheme with all the buildings
and works thereon at that date and without references to improvements
contemplated in the scheme other than improvements due to the alteration of its
boundaries." 89 Sub-section (2) of section 64 provides:
"if in any case the total of the values
of the plots included in the final scheme exceeds the total of the values of
the original plots, each of such plots being estimated in the manner provided
in clause (f) of sub-section (1), then the amount of such excess shall be
deducted in arriving at the costs of the scheme as defined in sub-section
(1)." Section 65 explains the meaning of increment for the purposes of the
Act as follows:
"For the purposes of this Act the
increments 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 a plot included
in the final scheme estimated on the assumption that the scheme has been
completed would exceed at the same date the market value of the same plot
estimated without reference to improvements contemplated in the scheme:
Provided that in estimating such values the
value of buildings or other works erected or in the course of erection on such
plot shall not be taken into consideration." Section 66 (1) states that
the costs of the scheme shall be met wholly or in part by a contribution to be
levied by the local authority on each plot 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. Under sub-section (2) of section 66 the "owner
of each plot included in the final scheme shall be primarily liable for the
payment of the contribution leviable in respect of such plot". Under
section 67 the amount by which the total value of the plots 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 person, each of such plots being estimated
at its market value at the date of the declaration of intention to make a
scheme without reference to improvements contemplated in the scheme other than
improvements due to the alteration of its boundaries. As Shah J., speaking for
the Court in State of Gujarat v. Shantilal Mangaldas and others observed:
"(Section 67) is intended to make
adjustments between the right to compensation for loss of 90 land suffered by
the owner, and the liability to make contribution to the finances of the
scheme". Section 69 deals with the compensation payable in respect of any
property or right which is injuriously affected by the making of a town
planning scheme. The section says:
"The owner of any property or right
which is injuriously affected by the making of a town planning scheme shall, if
he makes a claim before the Town Planning Officer within the prescribed time,
be entitled to obtain compensation in respect thereof from the local authority
or from any person benefited or partly from the local authority and partly from
such person as the Town Planning Officer may in each case determine.
Provided that the value of such property or
right shall be held to be 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 without reference to improvements contemplated in the
scheme".
Section 71 deals with the case of an owner of
land who is not given a plot in the final scheme and also provides for a case where
the amount payable to an owner exceeds the amount due from him. Section 71 is
as follows:
"If the owner of an 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 there from
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".
The appellant in the present case was not
provided with a plot in the final scheme. Section 87 in Chapter IX empowers the
State Government to make rules consistent with the provisions of the Act to
provide for all matters not specifically indicated therein.
The effect of the final scheme coming into
force has been summarized by Shah J., in Shantilal's case; we may quote here
the following extract from page 349 of the report:
"On the coming into force of the scheme
all lands which are required by the local authority, unless otherwise 91 determined
in the scheme, by the operation of s. 53 (a) vest absolutely therein free from
all 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 re- constituted, 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
parts of a land of one person, may go to make a reconstituted plot, and the
plot so reconstructed may be allotted to another person and the lands needed
for public purposes may be earmarked for those purposes.
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 re-constituted 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 rises 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".
Under the Act the compensation payable to an
owner for loss of land has to be determined on the basis of the market value of
the land at the date on which the declaration of intention to make a scheme was
made. On the question whether the Act specifies a principle of compensation, it
is observed in Shantilal's case at page 357 of the report:
"It is true that under the Act the
market value of the land at the date of declaration of intention to make a
scheme determines the amount to be adjusted, and that is the guiding rule in
respect of all lands covered by the scheme. The High Court was, in our
judgment, right in holding that enactment of a rule determining payment or
adjustment of price of land of which the owner was deprived by the 92 scheme
estimated on the market value on the date of declaration of the intention to
make a scheme amounted to specification of a principle of compensation within
the meaning of Art, 31 (2). Specification of principles means laying down
general guiding rules applicable to all persons or transactions governed
thereby. Under the Land Acquisition Act compensation is determined on the basis
of "market value" of the land on the date of the notification under
s.4 (1) of that Act. That is a specification of principle. Compensation
determined on the basis of market value prevailing on a date anterior to the
date of extinction of interest is still determined on a principle specified.
Whether an owner of land is given a reconstituted plot or not, the rule for
determining what is to be given as recompense remains the same. It is a
principle applicable to all cases in which by virtue of the operation of the
Town Planning Act a person is deprived of his land whether in whole or in
part".
We may now turn to sections 32, 33 and 34
occurring in chapter V. It may be recalled that the appellant's land was taken
for purposes of the scheme but he was not given a reconstituted plot. Section
32 (1) which enumerates the duties of the Town Planning Officer is set out
below:
"32 (1) In accordance with the
prescribed procedure the Town Planning Officer shall (i) after notice given by
him in the prescribed manner, define and demarcate the areas allotted to, or
reserved, for a public purpose or purpose of the local authority and the
reconstituted plots;
(ii) after notice given by him in the
prescribed manner, determine, in the case in which a reconstituted plot is to
be allotted to persons in ownership in common, the shares of such persons;
(iii)fix the difference between the total of
values of the original plots and the total of the values of the plots included
in the final scheme, in accordance with the provisions contained in clause (f)
of sub section (1) of section 64;
93 (iv) determine whether the areas used,
allotted or reserved for a public purpose of the local authority are beneficial
wholly or partly to the owners or residents within the area of the scheme;
(v) estimate the portion of the sums payable
as compensation on each plot used, allotted or reserved for a public purpose or
purpose of the local authority which is beneficial partly to the owners or
residents within the area of the scheme and partly to the general public, which
shall be included in the costs of the scheme;
(vi) calculate the contribution to be levied
on each plot used, allotted or reserved for a public purpose or purpose of the
local authority which is beneficial partly to the owners or residents within
the area of the scheme and partly to the general public;
(vii)determine the amount of exemption, if
any, from the payment of the contribution that may be granted in respect of
plots exclusively occupied for the religious or charitable purposes;
(viii)estimate the increment to accrue in
respect of each plot included in the final scheme in accordance with the provisions
contained in section 65;
(ix) calculate the proportion in which the
increment of the plots included in the final scheme shall be liable to
contribution to the costs of the scheme in accordance with the provisions
contained in section 66;
(x) calculate the contribution to be levied
on each plot included in the final scheme;
(xi) determine the amount to be deducted
from, or added to, as the case may be, the contribution leviable from a person
in accordance with the provisions contained in section 67;
(xii)provide for the total or partial
transfer of any right in an original plot to a reconstituted plot or provide
for the extinction of any right in an original plot in accordance with the
provisions contained in section 68;
94 (xiii)estimate in reference to claims made
before him, after the notice given by him in the prescribed manner, the
compensation to be paid to the owner of any property or right injuriously
affected by the making of a town planning scheme in accordance with the
provisions contained in section 69;
(xiv)draw in the prescribed form the final
scheme in accordance with the draft scheme:" There is a proviso to section
32 (1) which is not relevant for the purpose of this appeal.
Section 33 says:
"Except in matters arising out of clauses
(v), (vi), (vii), (ix), (x) and (xiii) of sub-section (1) of section 32, every
decision of the Town Planning Officer shall be final and conclusive and binding
on all persons." Section 34 provides an appeal to a Board of Appeal from
any decision of the Town Planning Officer under clauses (v), (vi) (viii), (ix),
(x) and (xiii). Thus the decision of the Town Planning Officer is final and
conclusive in all matters referred to in the various clauses of section 32 (1)
except those mentioned in (v), (vi), (viii), (ix), (x) and (xiii).
It was claimed on behalf of the appellant
that the Town Planning Officer's decision in the appellant's case was
appealable either under clause (viii) or clause (xiii) of section 32 (1). The
Town Planning Officer has a duty under clause (viii) to calculate the increment
to accrue in respect of each plot included in the final scheme (which we will
refer to hereinafter as the final plot for brevity's sake) in accordance with
the provisions of section 65. Under section 65 increment means the amount by
which at the date of the declaration of the intention to make a scheme, the
market value of a final plot calculated on the basis as if the improvements
contemplated in the scheme had stood completed on that date exceeds the market
value of the same plot when taken into account without the improvements. The
increment is thus the difference in the market value of the same final plot
with the improvements and without the improvements on the aforesaid date. The
value of the original plot does not arise for consideration under clause
(viii). Rule 17 of the Bombay Town Planning Rules, 1955 sets out the
particulars that a draft scheme shall contain in addition to the particulars
specified in 95 section 25 of the Act. Clause (v) of rule 17 mentions a
"redistribution and valuation statement in Form 'B' showing the estimated
amounts to be paid to, or by, each of the owners included in the scheme".
Form B makes it clear that the increment is the difference in value of the same
final plot in its developed and undeveloped conditions; Form B keeps the
valuation of the original plot distinct from that of the final plot. The
appellant's case therefore cannot fall under clause (viii).
Does the case fall under clause (xiii)? Under
clause (xiii) the Town Planning Officer is required to estimate the
compensation to be paid to the owner of any property or right injuriously
affected by the making of a town planning scheme in accordance with the
provisions of section 69.
Section 69 states that the owner of any property
or right which is injuriously affected by the making of a town planning scheme
shall be entitled to obtain compensation from the local authority or from any
person benefited or partly from the local authority and partly from such person
as the Town Planning Officer may in each case determine. It seems obvious that
the property or right which is injuriously affected by the making of a town
planning scheme is a property or right other than that acquired for the
purposes of the scheme. The property or right affected remains with the owner
who is entitled to compensation for such injurious affection. When under the
Act a plot of land is taken for the purposes of a town planning scheme, it
cannot be suggested that land itself is injuriously affected; such a view is
unsupportable both as a matter of language and having regard to the scheme of
the Act. On behalf of the appellant it was urged that clause (xiii) would cover
the case of the appellant if only we read a few words in that clause and that
we should do so to avoid injustice being done to the appellant and the owners
of land similarly situated. That we are afraid is not possible. We find no
compelling reason for restructuring that clause, and taking acquisition of land
to mean 'injurious affection' of the land acquired would be inconsistent with
the entire scheme of the Act. We may refer to clause 'fourthly' of section 23
(1) of the land Acquisition Act, 1894 which requires the court to take into
consideration in determining the amount of compensation to be awarded for land
acquired under that Act, the damage sustained by the "person
interested" "by reason of the acquisition injuriously affecting his
other property". The expression "person interested" as defined
in section 3 of the Land Acquisition Act means all persons claiming an interest
in compensation to be made on account of the acquisition of land under that
Act. It is made clear in clause 96 'fourthly' that the damage is for injurious
affection of some property other than the land acquired. The sense in which the
expression 'injurious affection' is used in section 23 (1) of the Land
Acquisition Act is the generally accepted meaning of that expression and we
find nothing in the Act concerned in this case that suggests that it should be
construed differently.
It was then argued that if neither clause
(viii) nor clause (xiii) was applicable, then there was no clause in section 32
(1) of the Act that covers the appellant's case.
The contention is not correct. The owner of
an original plot who is not provided with a plot in the final scheme gets his
right to compensation from section 71 of the Act which says that the net amount
of 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". The principle for
determining the compensation is the same whether an owner of land is given a
reconstituted plot or not; compensation is payable on the basis of the market
value of the plot at the date of declaration of the intention to make a scheme.
In the appellant's case it would be the value of the original plot and not the
final plot. In determining the difference between the total of the values of
the original plots and the total of the values of the plots included in the
final scheme, the Town Planning Officer under section 32 (1) (iii) has to find
out the market value of each of the original plots at the date of the
declaration of intention to make a scheme as provided in section 64 (1) (f).
Thus the Act contains the necessary provisions for estimating the compensation
payable to an owner of land who has not been given a reconstituted plot.
We therefore hold that the High Court was
right in finding that the decision of the Town Planning Officer determining the
amount of compensation in the appellant's case was not appealable. In the view
we take, Mr. Nariman should be allowed to urge the grounds concerning the
constitutional validity of the Act. This case may now be placed before a
Constitution Bench for hearing. An application has been filed on behalf of the
appellant for leave to urge additional grounds; this application may also be
considered by the Constitution Bench that will hear this appeal.
P.B.R. Appeal dismissed.
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