Yogendra
Pal Vs. Municipality [1994] INSC 381 (15 July 1994)
Sawant,
P.B. Sawant, P.B. Anand, A.S. (J)
CITATION:
1994 AIR 2550 1994 SCC (5) 709 JT 1994 (4) 376 1994 SCALE (3)296
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by SAWANT, J.- This is a group of appeals
and a writ petition.
Although
the facts differ, they raise a common question of law, viz., whether the
provisions of Section 192(1)(c) of the Punjab Municipal Act, 1911 and the
corresponding provisions of Section 203(1)(c) of the Haryana Municipal Act,
1973 for compulsory transfer of the land to the Municipal Committees without
payment of compensation, are valid.
2. For
the purpose of this common judgment, we propose to narrate the facts in Civil
Appeal No. 818 of 1986. That appeal is directed against the decision dated 12-4-1985 of the Division Bench of the Punjab & Haryana
High Court in a group of five writ petitions.
3. On
17-11-t969, the State Government, under Section 3(18)(b) of the Punjab
Municipal Act, 1911 (hereinafter referred to as the 'Act') declared an area
admeasuring 22.23 acres as unbuilt. The said area was described in the
notification as Pocket No. 6. Thereafter, on 11-5-1976, the State Government under Section 192(3) of the Act
sanctioned a Town Planning Scheme drawn up by the Municipal Committee under
Section 192(1) of the Act. Under the said Scheme, the said area of 22.23 acres
was transferred to the Municipal Committee in terms of the provisions of
Section 192(1)(c) of the Act. The said area included land admeasuring 11,279
sq. yards owned by the writ petitioners before the High Court.
Since
no compensation was paid for the land, the writ petitioners challenged the
transfer of the land as illegal, it being without payment of compensation. The
petitioners also assailed the vires of Section 192(1)(c) of the Act.
The
challenge to the transfer of the land was also on other grounds with which we
are not concerned here. The High Court dismissed the writ petitions on the
ground, among others, that the vires was no longer open to challenge since it
was upheld by the High Court in Om Parkash v. Municipality, Bhatindal. The High
Court also held that the writ petitions suffered from laches and hence rejected
the challenge to the validity of the Scheme on that account.
Again,
we are not concerned here with the other grounds on which the writ petitions
were dismissed.
4.
Admittedly, the challenge to the vires of Section 192(1)(c) has been repelled
by the High Court in other connected matters also, on the ground that the issue
had been foreclosed by the aforesaid decision of the High Court in Om Parkash
v. Municipality, Bhatindal. We are, therefore, concerned with the challenge to
the constitutional validity of Section 192(1)(c) of the Act. I AIR 1980 P&H
254: ILR (1980) 2 P&H 293 714
5. In Om Parkash v. Municipality, Bhatindal the validity of
the provisions of Section 192(1)(c) of the Punjab Municipal Act, 1911 directly
fell for consideration there.
The
validity was challenged on the ground that the provision violated Articles 14,
19(1)(f) and 31 of the Constitution.
The
violation of Article 14 was alleged on the ground that the provisions conferred
unlimited, unguided and arbitrary powers on the authorities to transfer the
land of some persons and not to touch the land of other persons failing under
the Scheme and that the provision provided a scope for pick and choose. It was
also contended on this score that even the purposes for which the provisions
had to be made in the Scheme are not specified and hence the arbitrariness was
writ large on the face of it. This challenge was negatived by the High Court on
the ground that the Legislature had made the provisions for the administration
of Municipalities and the duties of the Municipal Committees have been
elaborately enumerated under the various heads in the Act itself, and Section
192(1)(c) specifically mentioned that the land shall be transferred to the
Municipal Committees for public purposes including a public street. The Act
also made provision for a public notice of the purpose for which the Town
Planning Scheme was to be prepared. The second ground of attack based on the
alleged violation of Article 14 was that the land could be acquired under the
Land Acquisition Act, 1894, the Punjab Town Improvement Act, 1922 and also
under Section 192(1)(c) of the Act. If the land is acquired under the former
two statutes, the landowner was entitled to the compensation at the market rate
whereas if the land was acquired under the provision of Section 192(1)(c) of
the Act, he was deprived of compensation to the extent of 25 per cent of his
holdings. Repelling these contentions, the High Court held that the Town
Planning Scheme was to be made for the development of the unbuilt area which
was ultimately to the advantage of the landowners whose land fell within that
area and it would appreciate to a great extent the value of the remaining land
of the landowners. Further, there was, according to the court, no acquisition
of the land by the municipal committee and the landowners were not divested of
the ownership or of possession of the land and there was also no discrimination
between the owners of land whose lands were so transferred
6. As
regards the challenge to the provisions of Section 192(1)(c) on the ground of
their violating Article 19(1)(g) read with Article 31, the High Court held that
the area of the respondent-Municipal Committee in that case, viz., Bhatinda
Municipality was earlier within the territorial jurisdiction of Patiala State
which merged in PEPSU on 22-5- 1949 by PEPSU Municipal Ordinance No. 2006 B.K.
After the PEPSU merged with the State of Punjab in 1956, the provisions of the Act were applied to the whole of the
area of the erstwhile PEPSU by Act No. 5 of 1959. Thus, according to the High
Court, even before the enforcement of the Indian Constitution on 26-1-1950 the
provisions of the Punjab Municipal Act, 1911 were applicable to the territories
which fell within the jurisdiction of the Municipal Committee, Bhatinda and
hence the provisions of Section 192(1)(c) being the "existing 715
law" were saved by Article 31(5) of the Constitution and were not hit by
Article 31(2) thereof as they stood then.
7. The
contention of the appellants/petitioner is that the provision for compulsory
transfer of the land to the Municipal Committee for the purpose of the Town
Planning Scheme without payment of compensation is ultra vires Article 19(1)(f)
read with Article 31 of the Constitution as the articles stood then, since the
transfer was prior to 20- 6-1979 from which date the said articles stood
deleted by the Constitution (Forty-fourth) Amendment Act, 1978. As against
this, the contention of the respondent-Municipal Committee and of the State
Government is that the section in question provides for a town planning scheme
for unbuilt areas. The land is taken for a limited purpose of development and
for the benefit of the proprietor whose land is being developed and made
legally capable of being built upon. The object of the scheme is not to deprive
any landowner of his land but to frame the town planning scheme for his
benefit. There is no divesting of any right or title of the owner of the land
nor is the owner deprived of his possessory rights over the land. Both the
ownership and possession of the land remain with the landowner. There is thus
no acquisition of the land and hence there is no question of payment of any
compensation to the landowner.
The
right of the landowner is restricted to use the land only for the purpose of
the scheme and no further. It is, further, contended that the Municipal
Committee under the scheme provides certain facilities to the landowner by way
of streets, parks etc. and develops the land for and on behalf of the landowner
and for the benefit of the better use of the land which remains with him. In
fact the landowners are also benefited in monetary terms because the value of
the land which remains with them appreciates with the development of the
facilities of roads, parks etc.
8. In
order to appreciate the rival contentions, it is necessary to understand the
relevant provisions of the Act.
Section
3(13)(a) of the Act defines "street" to mean- "any road, foot
way, square, court, alley or passage, accessible, whether permanently or
temporarily to the public, and whether a thoroughfare or not; and shall include
every vacant space notwithstanding that it may b e private property and partly
or wholly obstructed by any gate, post, chain or other barrier, if houses,
shops or other buildings abut thereon, and if it is used by any persons as a
means of access to or from any public place or thoroughfare, whether such
persons be occupiers of such buildings or not, but shall not include any part
of such space which the occupier of any such building has a right at all hours
to prevent all other persons from using as aforesaid." Section 3(13)(b)
defines public street as any street-
(i)
heretofore levelled, paved, metalled, channelled, sewered or repaired out of
municipal or other public funds, unless before such work was carried out, there
was an agreement with the proprietor that the 716 street should not thereby
become a public street, or unless such work was done without the implied or
express consent of the proprietor; or
(ii) which
under the provisions of Section 171, is declared by the committee to be, or
under any other provision of the Act becomes, a public street."
9.
Section 3(17) of the Act defines "public place" to mean- "a
space which is open to the use or enjoyment of the public whether or not
private property and whether or not vested in the committee."
10.
Sub-section (18)(a) of Section 3 defines "built area" to mean "that
portion of a municipality of which the greater part has been developed as a
business or residential area" and sub-section (18)(b) defines "unbuilt
area" as " an area within the municipal limits which is declared to
be such at a special meeting of the committee by a resolution confirmed by the
State Government or which is notified as such by the State Government."
11.
Section 56(1)(f) and (g), among other things, define "property vested in
committee" as follows:
"(f)
all land or other property transferred to the committee by the Government or
acquired by gift, purchase or otherwise for local public purposes;
(g)
all public streets, not being land owned by Government and the pavements, stones
and other materials thereof, and also trees growing on and erections,
materials, implements and things provided for such (emphasis supplied) Section
56(2) then states as follows:
"(2)
Where any immovable property is transferred otherwise than by the sale by the
State Government to a municipal committee for public purposes, it shall be
deemed to be a condition of such transfer, unless specially provided to the
contrary, that should the property be at any time resumed by Government, the
compensation payable there for shall, notwithstanding anything to the contrary
in the Land Acquisition Act, 1894, in no case exceed the amount if any, paid to
the Government for the transfer, together with the cost or the present value,
whichever shall be less, or any buildings erected or other works executed on
the land by the municipal committee." (emphasis ours)
12.
Section 169 which deals with the powers of the Municipal Committee in
connection with the streets, in clauses (f) and (g) thereof declares as
follows:
"(f)
subject to the provisions of any rule prescribing the conditions on which
property may be acquired by the committee, may acquire any land, along with the
building thereon, which it deems necessary for the purpose of any scheme of
work undertaken or projected in exercise of the powers conferred under the
preceding clause, and 717 (g) subject to the provisions of any rule prescribing
the conditions on which property vesting in the committee may be transferred,
may lease, sell or otherwise dispose of any property acquired by the committee
under clause (f); or any land vesting in and used by the committee for a public
street and no longer required therefore, and in so doing may impose conditions
regulating the removal and construction of buildings upon it and the other uses
to which such land may be put:
Provided
that land owned by proprietors other than the Government shall become the
absolute property of the committee after it has continuously vested in the
committee for use as a public street for a period of twenty-five years; but
that the possession of such land that ceases to be required for use as a public
street before the expiry of twenty-five years from the time that it became
vested in the committee shall be transferred to the proprietor thereof, on
payment by him of reasonable compensation to the committee for improvements of
such land, and subject to such restrictions as the committee may impose on the
future use of such land, and that should the proprietor be unable or unwilling
to pay the amount of such compensation the committee may, subject to such
conditions as it may deem fit sell the land, and shall pay to the owner the
proceeds, if any, over and above the amount of such compensation which shall be
paid into the municipal fund, or may dispose of it in such manner as it may
deem fit." (emphasis supplied)
13.
Section 192 then provides for building scheme. Its relevant provisions read as
follows:
"192.
Building scheme.- (1) The committee may, and if so required by the Deputy
Commissioner shall, within six months of the date of such requisition, draw up
a building scheme for built areas, and a town planning scheme for unbuilt
areas, which may among other things provide for the following matters, namely-
(a)
the restriction of the erection or re- erection of buildings or any class of
buildings in the whole or any part of the municipality, and of the use to which
they may be put;
(b) the
prescription of a building line on either side or both sides of any street
existing or proposed; and
(c)
the amount of land in such unbuilt area which shall be transferred to the
committee for public purposes including use as public streets by owners of land
either on payment of compensation or otherwise, provided that the total amount
so transferred shall not exceed thirty-five per cent, and the amount
transferred without payment shall not exceed twenty-five per cent, of any one
owner's land within such unbuilt area." (emphasis supplied)
14.
The contentions advanced on behalf of the respondents that there is only a
transfer of the land from the landowner to the Municipal Committee and there is
no acquisition of the same and that the transferred land does not vest in the
Municipal Committee and that the possession remains with the 718 landowner, are
contrary both to the factual and legal position. Section 192 of the Act gives
powers to the Municipal Committee to draw up a building scheme for built area
and a town planning scheme for unbuilt area. We are not here concerned with the
building scheme for the built area. We are concerned with the town planning
scheme for the unbuilt area. The provisions of Section 192(1)(c) envisage that
the Municipal Committee prepares a town planning scheme for the unbuilt area.
The scheme may, among other things, provide for the extent of land in such unbuilt
area which shall be transferred to the Committee for "public purposes
including use as public street" by owners of land.
The
transfer of the land under the said provision is further to be either on
payment of compensation or otherwise. This means that the Municipal Committee
is given authority to transfer the land from the landowner to itself either by
paying compensation or without any compensation depending upon its discretion,
since there is no guideline provided by the said provision as to when
compensation is or is not to be paid to the landowner. There is, however, a
restriction contained in the said provision both on the maximum amount of land
that may be so transferred from a landowner as well as the maximum amount of
the land which may be transferred without payment of compensation. The proviso
says that the total amount of land that may be transferred from any one owner
shall not exceed 35 per cent of his land and the land that may be transferred
from him without payment of compensation shall not exceed 25 per cent of his
land. It will thus be obvious that, in the first instance, if the land
transferred from the landowner is less than 25 per cent of his holding, there
is no obligation to pay any compensation. Secondly, there is no guideline given
in the Act as to when the compensation is to be paid or denied to the
landowner. The very fact, however, that the said provision provides for
compensation whether discretionary or obligatory depending upon the amount of
land transferred from the landowner, shows that the Legislature was aware of
the fact that by such transfer, the landowner will stand deprived of his rights
and interests in it.
Otherwise,
even the said provision for payment of compensation is without any purpose. Further,
there is no provision in the Act which shows that the possession of the land is
to remain with the landowner even after it is transferred to the Committee. On
the contrary, the provision envisages the transfer of the land for public
purposes including for use as public street "by owners of the land".
The expression "public purpose" has not been defined in the Act.
However, the expressions "public street" and "public place"
have been defined and we have reproduced the said definitions earlier. It cannot
be denied that the expression "public purpose" is of a wide import
and any purpose of public utility, of welfare of the public and in public
interest which the Municipal Committee under the law can cater to, would be
covered by the said expression. It will include public streets, parks and
gardens, drainage, lanes and bye-lanes, public buildings etc. The expression
"for public purposes including use as public streets by owners of
land" cannot be construed to mean that the land would be transferred to
the Municipal Committee only for such public purpose or purposes which can be
made use of by the owners of the land from whom the land is transferred. The
word 719 "including" only suggests that the public purpose for which
the land is transferred may be of relevance also to the owners of the land
whose land is so transferred. It is not necessary that in all cases it should
be so. Secondly, the use of the said expression suggests that the purpose
concerned cannot be of benefit only and exclusively to the transferor
landowner. If that were so, the expressions "public purpose" and
"public street" used in the said provision would be erroneous. What
is more, no land could be transferred compulsorily for such private purpose. On
the other hand, the use of the said expressions clearly show that the purpose
for which the land is to be transferred to the Municipal Committee is of
utility to members of the public in general. The fact that the transferor
landowner is also benefited by such purpose as a member of the public makes no
difference to the position in law that neither he is the exclusive beneficiary
of such purpose nor is the purpose meant for his benefit alone. On the other
hand, the definitions of expressions " public street" and
"public place" show that the public purpose intended to be served by
the transfer of the land is and has to be of use and benefit to the general
public.
15.
The contention that the expression used in the said provision being
"transferred" and not "acquired" would show that the rights
and interests of the landowner in the land in question are not extinguished and
he continues to remain the owner thereof, the transfer being only for a limited
purpose, has only to be stated to be rejected. As pointed out above, there is
no provision in the Act to suggest that in spite of the land being used for a
public purpose, the possession, ownership or occupation, of the transferred
land remains with the landowner and that he can deal with or dispose of the
same as he desires. In fact, the provision shows that he can exercise his
rights over the land so transferred only as a member of the public and no
longer as the owner of the land. His rights vis-a-vis the transferred land are
on a par with those of the other members of the public. It is also not correct
to say that the purpose is limited. We have been unable to, understand the
expression "limited" in the present context. It is not suggested that
the purpose for which the land is taken is of a limited duration and that the
land would be restored to the landowner after the purpose is over. In fact,
even for such use of the land for a limited period, the landowner will have to
be compensated suitably.
16. We
may in this connection contrast the provisions of Section 192(1)(c) with those
of Section 169. The said section gives the Municipal Committee powers in
connection with laying and making public streets and constructing tunnels and
other works subsidiary thereto. Clause (f) of the said section provides for
acquisition of any land along with the building thereon for that purpose. The
proviso to clause (g) of the said section provides that the land so acquired
shall become the absolute property of the Municipal Committee after it has
continuously vested in it for use as a public street for a period of 25 years
and that if the land so acquired is not needed for use as a public street
before the expiry of 25 years from the time that it became vested in the
Municipal Committee, it shall be transferred back to the proprietor of the land
on payment by him of reasonable compensation to 720 the Municipal Committee for
improvement made on such land and subject to such restrictions as the Municipal
Committee may impose on the future use of such land. If the proprietor is
unable or unwilling to pay the amount of such compensation, the Municipal
Committee is authorised to sell the land subject to such conditions as it may
deem fit and has to pay to the owner the proceeds, if any, over and above the
amount of such compensation. Thus, the provisions of Section 169 which give
powers to the Municipal Committee for laying public streets show firstly that
the Municipal Committee has to acquire the land for the purpose by paying
compensation to the landowner. Secondly, if such acquired land continues to be
with the Municipal Committee for use as a public street for a period of 25
years or more, it becomes the absolute property of the Municipal Committee in
the sense that there is no obligation on the Municipal Committee for restoring
its possession to the original owner of the land even if the land ceases to be
used for the purpose thereafter. However, if such land ceases to be required
for use as a public street before the expiry of 25 years from the time that it
was acquired, there is an obligation on the Municipal Committee to transfer the
same to its original owner albeit on payment by him of reasonable compensation
to the Committee for improvement made on such land and subject also to his
using the said land in accordance with the restrictions that the Municipal
Committee may impose. If the original landowner is unable or unwilling to pay
the amount of compensation, the Municipal Committee is given power to sell it.
However, in that case, it has to pay to the original landowner the proceeds of
such sale, if any, which are over and above such compensation. These provisions
of Section 169 show that there is a distinct inconsistency between them and the
provisions of Section 192(1)(c). Whereas under Section 169, the land is to be
acquired only for making or laying public streets, under Section 192(1)(c), the
land may be "transferred" for any public purpose including for use as
a public street.
Further,
under Section 169, the land is to be acquired by payment of compensation for
the whole of it and, as pointed out above, if within 25 years of such
acquisition it is not required for use as a public street it is to be restored
to the original landowner subject to his agreeing to pay the compensation for
the improvement made thereon and accepting the restrictions as may be imposed
by the Municipal Committee for its future use. What is more, if he is unable or
unwilling to take the land back on the said terms, and the Municipal Committee
sells such land to others, he is entitled to receive the excess sale proceeds,
if any.
However,
under Section 192(1)(c), no compensation is payable to the landowner when the
land "transferred" even though for use as public street is below 25
per cent of the total land of the landowner and the rate at which the
compensation shall be paid when it is above 25 per cent, is in the discretion
of the Municipal Committee. What is more, when the land is so transferred for
use as public street under Section 192(1)(c), the land remains forever with the
Municipal Committee and there is no provision for its restoration to the
landowner even if it is not required or ceases to be required for use as public
street within 25 years of such transfer.
721
17.
The contention that the expression used under Section 192(1)(c) is
"transferred" as against "acquired" and, therefore, the
landowner does not lose his rights of ownership and that the possession
continues to be with the landowner has also no merit. In the absence of any
provision in the Act which suggests that the landowner continues to be the
owner of the land or that the land remains in his possession in spite of the
transfer and that he is entitled to deal with or dispose of the same as he
desires, it is obvious that the use of the word "transferred" is a
euphemism for "acquisition". We have also emphasised above the fact
that if the land was not to vest in the Municipal Committee there was no need
for the Legislature to provide for payment of compensation even when the land
so "transferred" exceeds 25 per cent of the total holding of the
landowner. We are, therefore, more than satisfied that when the land is
"transferred" under Section 192(1)(c) of the Act, the transfer is
nothing short of acquisition divesting the landowner of all his rights as owner
of the land.
18.
The next contention is that the transfer of the land is also for the benefit of
the transferor landowner and in fact the balance of the land which remains with
him appreciates in value to an extent which more than sufficiently compensates
him for the loss of the land. Hence there is no need to pay him separate
compensation for the extent of land up to 25 per cent transferred to the
Municipal Committee.
The
contention suffers from several fallacies. In the first instance, as the
provisions of the section themselves point out, the land is to be transferred for
a public purpose including for use as public street. The purpose of the
transfer itself suggests that the transferor landowner is not exclusively to be
benefited by the public purpose. He enjoys the benefit, if any, along with the
other members of the public. There is no reason why, therefore, he should alone
pay for the said benefit in terms of his land.
Secondly,
the public purpose which is served by the Municipal Committee, assuming it
increases the value of the remaining land, also contributes to the increase in
the value of the land of all other landowners, which lands are similarly
benefited by the said public purpose. There is, therefore, no reason why the
landowner whose land is "transferred" for the purpose alone should
pay for the increase in the value of his remaining land in terms of the
transferred land. In fact, whereas it is only the remaining land of the
transferor landowner which is benefited by such increase in value, if any, the
whole of the land in the possession of the other landowners is benefited by the
accretion in value. Thus, on both accounts, there is a clear violation of
Article 14 of the Constitution to make only the transferor landowner suffer for
the public purpose.
What
is further, it is problematic and is in the realm of speculation as to whether
the appreciation of the value of the remaining property of the transferor
landowner will always be equivalent to or more than the value of the land
transferred to the Municipal Committee, assuming that the public purpose for
which the land is taken over contributes to the increase in the value of the
remaining property.
Lastly,
and this is equally important, in many cases the accretion to the value of the
remaining property may merely be on paper and be a poor consolation 722 to the
transferor landowner if he cannot or is unable for one reason or the other to
sell or otherwise dispose of the said property. On the other hand, in such
cases, the accretion in value may prove a burden if the property tax, wealth
tax, estate duty etc. are calculated on the basis of the market value of the
property. The so-called increase in the value of the property may thus prove a
liability to those who cannot dispose of their property. Looked at from any
angle, the argument that the transferor landowner is benefited because his
remaining property appreciates in value and, therefore, he need not be paid
separate compensation for the land which is transferred, is untenable in law.
We thus find that the provisions of Section 192(1)(c) are violative of Article
14 of the Constitution.
19.
The reliance placed on behalf of the respondent on the decisions of this Court
in Ajit Singh v. State of Punjab2 and Prakash Amichand Shah v. State of
Gujarat3 is obviously misplaced.
20. In
Ajit Singh case2, the facts were that some land was owned by a Gram Panchayat
which was used for common purposes. In a consolidation scheme of the village
under the provisions of the East Punjab Holdings (Consolidation and Prevention
of Fragmentation) Act, 1948, some further area was reserved for common purposes
after applying cut on all the right holders on pro rata basis. The appellant
contended that as he was a small landholder holding land within the ceiling
limit and some land under his personal cultivation had also been taken under
the consolidation scheme without payment of compensation as required under
second proviso to Article 31-A(1) of the Constitution, the acquisition was
illegal and confiscatory. The majority held that under the consolidation
scheme, all the proprietors of land were to enjoy benefits derived from use of
land for common purposes and the Panchayat as such was not to enjoy any
benefit. Thus, the beneficiary of the modification of rights was not the State
and hence, there was no acquisition by the State within the meaning of the said
provision of the Constitution.
21. In
Prakash Amichand Shah case3, the land was acquired for a town planning scheme
under Section 53 of the Bombay Town Planning Act, 1954. The Court held that the
acquisition was not violative of Article 14 of the Constitution on the ground
of deprivation of a more favorable procedure under the Land Acquisition Act
from the point of view of the procedural safeguards and from the point of view
of the quantum of compensation payable. The Act in question was not bad for not
extending to such acquisition the procedure of the Land Acquisition Act. The
Court pointed out that there were two separate provisions, one for acquisition
of land by the State Government under the Land Acquisition Act and the other for
acquisition for the purpose of town planning scheme by the local authorities
under the Bombay Town Planning Act. There was no option to the local authority
to resort to one or the other of the alternative methods resulting in
acquisition. The Court further pointed out that while as regards the 2 AIR 1967
SC 856: (1967) 2 SCR 143 : 69 Punj LR 271 3 (1986) 1 SCC 581 723 determination
of compensation, It was possible to apply the provisions of the Land
Acquisition Act, with some modifications as provided in the schedule to the
Bombay Town Planning Act, in the case of land acquired either under Section II
or Section 84 of that Act, in the case of the lands which were needed for the
local authority under the town planning scheme which authorised allotment of reconstituted
plots to persons from whom original plots were taken, it was difficult to apply
the provisions of the Land Acquisition Act. Section 32 and the other financial
provisions of that Act provide for determination of the cost of the scheme, the
development charges to be levied and contribution to be made by the local
authority etc. It was only after that exercise was done that the money was to
be paid to or demanded from the owners of the original plots depending on the
circumstances governing each case. It Is in that context that the Act had also
made special provisions under Sections 67 to 71 for determining compensation
payable to the owners of original plots, who did not get the reconstituted
plots. In the circumstances, it could not be said that there had been any
violation of Article 14. The Court also held that the provisions of the Act for
giving the value of land on the basis of the value prevailing at the date of
the declaration of the intention to make a scheme instead of on the date of extinction
of interest of the owner could not be assailed on the ground of not being a
provision for payment of compensation as stated in Article 31(2) of the
Constitution. The Act was also not discriminatory merely on the ground of
denial of the solatium of 15 per cent (which is now increased to 30 per cent).
The proceedings relating to the scheme were not like acquisition proceedings
under the Land Acquisition Act. The Court also held that it could not be said
that as a rule the State should always pay solatium. The interests of the
public are equally important.
22. It
would thus be apparent from the facts of this case that the acquisition was not
without payment of compensation and that the amount of compensation was to be
determined after ascertaining the cost of preparing the scheme, the benefit to
be derived by the proprietor of the land under the scheme etc. Since the
acquisition under the town planning scheme was for a particular purpose, the
Act could separately provide for payment of compensation for such acquisition
and that it was not necessary that the payment of compensation should have been
under the Land Acquisition Act. This was, therefore, not a case of acquisition
of land without payment of compensation. It is also interesting in this
connection to remember that under the Bombay Town Planning Act, 1954 there is
an elaborate procedure prescribed for determination of the compensation to be
paid to those landholders whose land is acquired for the purpose of the scheme,
for allotment of alternative plots to them, for levy of betterment charges on
all the landholders whose lands are benefited by the scheme etc. There is no
such provision under the present Act. On the contrary, under the provisions of
Section 192(1)(c), the Municipal Committee which prepares the town planning
scheme is given a naked power of acquiring the land without payment of
compensation if the land acquired is up to 25 per cent of the holding of the
landowner and of payment of compensation according to the 724 discretion of the
Municipal Committee without laying down the principles for payment of
compensation if the land acquired is above 25 per cent of the holding.
23. In
the present case the so-called transfer which as held above was nothing but
acquisition, was effected prior to 20-6-1979. Being without payment of
compensation, it was hit by Article 31(2) of the Constitution as it stood prior
to 20-6-1979. The article provided that no property shall be compulsorily
acquired or requisitioned save for a public purpose and save by authority of a
law which provided for acquisition or requisitioning of the property for an
amount which may be fixed by such law or which may be determined in accordance
with such principles and given in such manner as may be specified in such law.
As has been discussed above, Section 192(1)(c) of the Act provides for
acquisition of the land without providing for payment of compensation up to 25
per cent of the land of the landowner and also without providing for either the
amount or the principles of fixation of such amount for the remaining IO per
cent of the land. Section 192(1)(c), therefore, clearly violated the provisions
of the said article.
24.
However, sub-clause (5) of Article 31 of the Constitution saves the provisions
of any existing law from the operation of sub-clause (2) thereof. The
expression "existing law" has been defined by sub-clause (10) of
Article 366 to mean any law, ordinance, order, bye-law, rule or regulation
passed or made before the commencement of the Constitution by any Legislature,
authority or person having power to make such law, ordinance, order, bye law,
rule or regulation. The laws which were in existence prior to the commencement
of the Constitution were continued by virtue of the provisions of Article 372
of the Constitution subject to such adaptations and modifications as may be
necessary or expedient to be made by the President. Explanation (1) to Article
372 clarifies that the expression "law in force" would include a law
passed or made by the legislature or other competent authority in the territory
of India before the commencement of the Constitution notwithstanding that it or
parts of it may not be then in operation either at all or in particular areas.
Since the Punjab Municipal Act, 1911 passed by the then legislature was the
existing law within the meaning of Article 366(10) and was also the "law
in force" before the commencement of the Constitution, the provisions
thereof would not violate Article 31(2) of the Constitution. Hence, the attack
against the provisions of Section 192(1)(c) of the Punjab Municipal Act, 1911
and against the corresponding provisions of Section 203(1)(c) of the Haryana
Municipal Act, 1973 on the ground of their violation of Article 19(1)(f) read
with Article 31 as they stood then, must fail. It is not disputed that the Haryana
State was formed w.e.f. 1-11- 1966 with part of the territories which earlier
formed part of the State of Punjab and which were governed by the Punjab
Municipal Act, 1911.
25. We
may now state in brief the facts in each case before us.
CA No.
3656 of 1987 & WP No. 569 of 1987
26.
The appellant and the petitioner-Society (hereinafter referred to as the
'petitioner') is an owner in possession of the land measuring 2420 sq. 725
yards situated within the revenue limits of Village Bohar.
The
petitioner had constructed pucca foundations around the disputed land since
long and wanted to raise boundary walls over those foundations. The respondent Rohtak
Municipal Committee, Haryana, however, restrained the petitioner from doing so
and also intended to dispossess the petitioner from the land by force without
following the due process of law.
The
petitioner filed a suit before the Sub-Judge, Rohtak claiming that the
Municipal Committee had no right, title or interest over the land and for
restraining it from interfering with the peaceful possession of the petitioner
of the land. The Municipal Committee resisted the suit on the ground that the
suit property being situated in the municipal area of the Rohtak city, was not
agricultural land and that Town Planning Scheme No. 9 (supplementary) had been
framed on 31-5-1977 in the said area and the land was required for park and a
park had actually been laid out on the land and was bounded by barbed wires.
Thus, according to the Municipal Committee, the land was reserved for the
benefit of the public and for the welfare and comfort of the inhabitants of the
locality. The suit was dismissed and the first appeal filed by the petitioner
was also dismissed by the Additional District Judge, Rohtak. The second appeal
was rejected by the High Court in limine, The petitioner has, therefore, filed
this appeal and has also filed the writ petition separately challenging the vires
of Section 203(1)(c) of the Haryana Municipal Act, 1973, The writ petition was
admitted and is on board along with the present appeal. We are dismissing the
writ petition, since it is not maintainable. The appellant has already filed
the present appeal and has challenged the decision of the High Court, which
decision rests on the validity of Section 203(1)(c) of the Haryana Municipal
Act of 1973.
CA No.
2535 of 1981
27.
The appellant is an exclusive owner of a plot measuring 3000 sq. yards
comprised in Khasra No. 6165/2049 situated at Bhatinda. The respondent-Bhatinda
Municipal Committee framed a Town Planning Scheme known as Town Planning Scheme
of Area No. 2 Part III under Section 192(1) of the Punjab Municipal Act, 1911
and the Government sanctioned the same on 1/2-3-1977. By virtue of the said
Scheme, 66 per cent of the land of the appellant was transferred to the
Municipal Committee for park and road. The appellant filed a writ petition
before the High Court challenging the Scheme and vires of Section 192(1)(c) of
the Act on the ground of the violation of Articles 19 and 31 of the
Constitution. The High Court by a decision dated 23-3-1980 dismissed the
petition both on the ground of delay as well as on the ground that the issue
was concluded in Om Parkash v. Municipality, Bhatindal.
CA
Nos. 814-816 of 1986
28. In
these appeals the appellants are the owners of lands, parts of which were
transferred under the Town Planning Scheme to the respondent Bhatinda Municipal
Committee. The Scheme was prepared by the Municipal Committee and sanctioned by
the Government on 11-5-1976. The lands are transferred under the Scheme
variously for streets, green parks, pavements,parking and open space etc. under
Section 192(1)(c) of the Act.
726
29. As
held above, the provisions of Section 192(1)(c) of the Punjab Municipal Act,
1911 and of Section 203(1)(c) of the Haryana Municipal Act, 1973 are violative
of Article 14 of the Constitution. Hence the acquisitions of the appellants'
land under the respective provisions were bad in law. The question still
remains as to what relief the appellants can be granted. It is now well-settled
by the decisions of this Court beginning with I.C. Golak Nath v.
State
of Punjab4 that the Court can mould the relief to meet the exigencies of the
circumstances and also make the law laid down by it prospective in operation.
We are informed that till date the Municipal Committees in both Punjab and Haryana
States have similarly acquired lands for their respective town planning schemes
and in many cases the schemes have also been completed. It is only some of the
landowners who had approached the courts and the decisions of the courts have
become final in many of those cases. It would not, therefore, be in the public
interest to unsettle the settled state of affairs. It would create total chaos
and an unmanageable situation for the Municipal Committees if the said
provisions of the respective statutes and the land acquisitions made thereunder
are declared void with retrospective effect. We, therefore, propose to declare
that the provisions concerned of the two enactments would be void from the date
of this decision.
30.
This judgment will not prevent the respondent-State Government from suitably
amending Section 192(1)(c) of the Punjab Municipal Act and Section 203(1)(c) of
the Haryana Municipal Act as the case may be, and making appropriate provisions
in the statutes on the lines of the enactments prevailing in other States for
making the town planning schemes such as the Bombay Town Planning Act, 1954.
31.Hence,
while we hold that the provisions of Section 192(1)(c) of the PunjabMunicipal
Act, 1911 and of Section 203(1)(c) of the Haryana Municipal Act, 1973 being violative
of Article 14 of the Constitution are void with effect from the date of this
judgment and set aside the impugned decision of the High Court, we for the
reasons already stated, in the peculiar facts of these cases, dismiss the
appeals and the writ petition.
32. In
the facts and circumstances, however, we direct that the respondent-Municipal
Committee in CA No. 818 of 1986 shall make an ex gratia payment of Rs 30,000 to
the appellants therein and the respondent Municipal Committees in each of the
CA Nos. 814-16 of 1986, 2535 of 1981 and CA No. 3656 of 1987 shall make an ex gratia
payment of Rs 5000, to the appellants in the respective appeals.
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