Chairman, Indore Vikas
Pradhikaran' Vs. M/S Pure Industrial Cock & Chem. Ltd. & Ors  Insc 569 (15
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO. 2530 OF 2007 [Arising out of SLP (Civil) No. 5318 of 2007]
W I T H CIVIL APPEAL NO. 2531 OF 2007 [Arising out of SLP (Civil) No. 5695 of
2007] S.B. SINHA, J :
1. Leave granted.
2. Interpretation of the provisions of Madhya Pradesh Nagar Tatha Gram
Nivesh Adhiniyam, (No. 23 of 1973) (for short, 'the Act') is in question in
these appeals which arise out of the judgments and orders dated 06.03.2007
passed by a Division Bench of the High Court of Madhya Pradesh in Writ Petition
No. 9396 of 2006 and Writ Appeal No. 462 of 2006.
3. Before we advert to the said question, we may notice the admitted fact of
4. The said Act was enacted to make provisions for planning and development
and use of land; to make better provision of the preparation of the development
plans and zoning plans with a view to ensuring that town planning schemes are
made in a proper manner and their execution is made effective; to constitute a
Town & Country Planning Authority for proper implementation of town and
country development plan; to provide for the development and administration of
special areas through a Special Area Development Authority; to make provision
for the compulsory acquisition of land required for the purposes connected with
the said matters. The said Act came into force with effect from 16.04.1973.
Statutory Provisions :
5. The terms "development", "existing land use map",
"planning area", "Town Development Scheme" and "Town
and Country Development Authority", which are relevant for the purpose of
this case, have been defined in Section 2(f), 2(i), 2(o), 2(u) and 2(v) of the
Act respectively in the following terms :
"2(f) "development" with its grammatical variations means the
carrying out of a building, engineering, mining or other operation in, on over
or under land, or the making of any material change in any building or land or
in the use of either, and includes sub-division of any land;"
"2(i) "existing land use map" means a map indicating the use
to which lands in any specified area are put at the time of preparing the map,
and includes the register prepared, with the map giving details of land-use."
"2(o) "planning area" means any area declared to be a
planning area under this Act: Non-Planning area shall be construed
"2(u) "Town Development Scheme" means a scheme prepared for
the implementation of the provisions of a development plan by the Town and
Country Development Authority and includes "Scheme""
"2(v) "Town and Country Development Authority"
means an authority established under Section 38."
6. Chapter IV of the Act deals with planning areas and development plans.
Section 13(1) empowers the State Government to constitute planning areas for
the purposes of the said Act and define the limits thereof. Sub- section (2) of
Section 13 empowers the State Government by notification, inter alia, to alter
the limits of the planning area so as to include therein or exclude therefrom
such areas, as may be specified in the notification; to amalgamate two or more
planning areas so as to constitute one planning area; to divide any planning
area into two more planning areas; and to declare that the whole or part of the
area constituting the planning area shall cease to be a planning area or part
thereof. Sub-section (3) of Section 13 of the Act provides for a non-obstante
clause, in terms whereof, the local authority mentioned therein shall in
relation to the planning areas from the date of the notification issued under
sub-section (1) cease to exercise the powers, perform the functions and
discharge the duties which the State Government or the Director is competent to
exercise. Section 14 of the Act enables the Director to prepare an existing
land use map and development plan. Section 15 enables the Director to carry out
the survey and prepare an existing land use map and forthwith publish the same
in the manner laid down therein. Once such a plan is published, no person is
authorised to institute or change the use of any land or carry out any
development of land for any purpose other than that indicated in the existing
land use map without the permission in writing of the Director.
7. Clause (b) of sub-section (1) of Section 16, however, provides :
"(b) no local authority or any officer or other authority shall,
notwithstanding anything contained in any other law for the time being in
force, grant permission for the change in use of land otherwise than as
indicated in the existing land use map without the permission in writing of the
8. Section 17 provides as to what should be the contents of the development
plan. Section 17A(1) provides for constitution of a committee;
sub-sections (2) and (3) whereof read as under :
"(2) The Committee constituted under sub-section (1), shall :
(a) consider and suggest modifications and alterations in the draft
development plan prepared by the Director under section 14;
(b) hear the objections after the publication of the draft development plan
under section 18 and suggest modifications or alterations if any; to the
(3) The Convenor of the Committee shall record in writing all the
suggestions, modifications and alterations recommended by the committee under
sub-section (2) and thereafter forward his report to the Director."
9. Section 18 of the Act provides for publication of a development plan;
in terms whereof the objections and suggestions in writing are invited with
respect thereto. The notice in terms of the said provision is to specify in
regard to the draft development plan, inter alia, the following particulars :
"(i) the existing land use maps;
xxx xx xxx (iv) the provisions for enforcing the draft development plan and
stating the manner in which permission for development may be obtained."
10. Section 19 provides for sanction of development plans, sub-section (2)
whereof reads as under :
"(2) Where the State Government approves the development plan with
modification the State Government shall, by a notice published in the Gazette,
invite objections and suggestions in respect of such modifications within a
period of not less than thirty days from the date of publication of the notice
in the Gazette."
11. Preparation of zoning plan is envisaged under Chapter V thereof.
Section 20 reads as under :
"20. The Local Authority may on its own motion at any time after the
publication of the development plan, or thereafter if so required by the State
Government shall, within six months of such requisition, prepare a zoning
12. In the zoning plan more details of land use as indicated in the
development plan are to be indicated and, inter alia, shall :
"(c) allocate in detail areas or zones for residential, commercial,
industrial, agricultural, and other purposes;
13. Chapter VI of the Act deals with control of development and use of land,
provided that the overall control of development and use of land in the State
shall vest in the State Government; sub-section (2) of Section 24 reads as
"(2) Subject to the provision of sub-section (1) and the rules made
under this Act, the overall control of development and use of land in the
planning area shall vest in the Director with effect from such date as the
State Government may by notification, appoint in this behalf."
14. Section 25 envisages that the use and development of land shall conform
to the provisions of the development plan. Section 38 occurring in Chapter VII
provides for establishment of a Town and Country Development Authority,
sub-sections (1) and (2) whereof read as under :
"38(1).-The State Government may, by notification, establish a Town and
Country Development Authority by such name and for such area as may be
specified in the notification.
(2) The duty of implementing the proposal in the development plan, preparing
one or more town 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) shall, subject to the provisions of this Act
vest in the Town & Country Development Authority established for the said
15. Section 49 of the Act envisages that a town development scheme may make
provision for the matters specified therein including acquisition of land for
the purposes mentioned therein as also any other work of such a nature as would
bring about environmental improvements which may be taken up by the authority
with the prior approval of the State Government.
16. Sub-sections (1), (2), (3) and (4) of Section 50 of the Act, which are
material for our purpose, read as under :
"50.(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
(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."
17. A proviso has been added thereafter to sub-section (4) by Act of 2004 in
terms whereof a draft scheme must be approved within the period of one year
from the publication thereof. Section 51 provides for revision of the draft
scheme. Section 53 imposes restrictions on land use and land development in the
following terms :
"53. As from the date of publication of the declaration to prepare a
town development scheme, no person shall, within the area included in the
scheme, institute or change the use of any land or building or carry out any
development, save in accordance with the development authorised by the Director
in accordance with the provisions of this Act prior to the publication of such
18. Section 55 provides that land needed for the purpose of town development
scheme shall be deemed to be land needed for public purpose.
Section 72 empowers the State Government to supervise and control the acts
and proceedings of the officers appointed under Section 3 and the authorities
constituted under the said Act. The State can issue directions in terms of
Section 73 of the Act. Section 75 Section provides for delegation of powers.
19. On or about 13.02.1974, the State Government issued a notification under
sub-section (1) of Section 13 of the Act constituting Indore Planning Area, the
limits whereof were defined in the schedule appended thereto.
Indisputably, it constituted only 37 villages. The villages Bicholi and
Kanadia, with which we are concerned herein, were not included therein.
20. The State Government in exercise of power conferred upon it under
Section 38 of the Act issued a notification establishing the Appellant-
Authority, namely, 'Indore Vikas Pradhikaran' from 13.05.1977 in respect of the
area specified in the notification dated 13.02.1974.
21. On or about 30.03.1999, the State Government delegated its power under
Sections 13 and 47A of the Act in favour of the District Planning Committee and
it in exercise of said delegated power by a notification dated 13.11.2000
amended the planning area by adding 115 villages therein which included the
said villages Bicholi and Kanadia. By a notification dated 28.06.2002, it,
however, further amended the extent of planning area by deleting 62 villages
therefrom. Bicholi and Kanadia villages were, however, retained in the said
22. Upon compliance of the usual statutory formalities, the appellant
published a draft development plan on 27.06.2003. The said plan was in respect
of Urban Development Scheme No.164. Objections and suggestions in respect
thereof were called for. Allegedly, objections and suggestions having been
filed; they were heard by the Development Planning Committee during the period
between 25.08.2003 and 03.09.2003. By a resolution adopted in a meeting held on
20.08.2004 a decision in anticipation of approval of the Government under
Section 50(1) of the Act was proposed, which included the lands of villages
Bicholi and Kanadia, inter alia, for construction of a bye-pass road of 60
metres width. A declaration of intention to prepare a town development scheme
in terms of sub-section (2) of Section 50 was issued on 24.08.2004.
Indisputably, in terms of sub- section (3) of Section 50 of the Act, the draft
town development scheme was to be prepared within a period of two years
therefrom. On or about 02.12.2004, Respondent applied for sanction of
development plans under Section 29(1) of the Act. We may, however, notice that
on 04.01.2005, the said draft development plans were returned by the State of
Madhya Pradesh in terms of Section 19(1) of the Act with a direction that the
plans be prepared for the projected population as in the year 2021 and the same
be placed before the Government for approval as soon as possible.
23. The State of Madhya Pradesh, however, issued a notification in terms of
sub-section (1) of Section 38 of the Act, inter alia, in respect of the
villages in question, namely, Bicholi and Kanadia only on 28.10.2005.
Appellant issued a notification on 18.05.2006 inviting objections in respect
of the said scheme. A Draft Development Plan-2021 was published on 13.07.2006.
Contentions of the writ petitioner-respondents :
24. Respondents' lands situated in villages Bicholi and Kanadia were within
the respective jurisdictions of the Gram Panchayats constituted under the
provisions of the Madhya Pradesh Gram Panchayat Act. The said panchayats in
terms of the provisions of the Act were 'local authorities'.
They submitted applications for grant of building plan in the year 1990 and
the same was sanctioned on or about 05.04.1991.
25. Respondents, as noticed hereinbefore, applied for and obtained sanction
in terms of the building bye-laws framed by the respective gram panchayats in
1991 for grant of development plans under Section 29(1) on 02.12.2004. The said
applications were rejected by the Joint Director, Town and Country Planning in
view of the purported publication of the plan under sub-section (2) of Section
50 of the Act. Respondents filed a writ petition against the said order, inter
alia, praying for issuance of a writ or order in the nature of mandamus
directing the said authority to sanction the site plan which had been
submitted. The said writ petitions were dismissed by a learned Single Judge by
an order dated 17.05.2006. Writ appeals were preferred thereagainst, which have
been allowed by the Division Bench of the High Court by its judgment dated
High Court Judgment :
26. By reason of the impugned judgment, the High Court struck down the
declaration made under Section (2) of Section 50 of the Act, opining :
(i) Unless a development plan for an area is published and comes into
operation, a draft development scheme cannot be published by the Town and
Country Development Authority under sub-section (2) of Section 50 of the Act.
(ii) Such a town development scheme cannot by itself without a development
plan for the area restrict the right of a person to use his property in the
manner he likes.
(iii) Although the notification issued by the Appellant-Authority had been
constituted by the State Government only in respect of the area which was
covered by the notification dated 13.02.1974, the draft development scheme
prepared by it was ultra vires, so far as the said two villages are concerned,
being beyond its territorial jurisdiction.
27. Mr. K.K. Venugopal, and Mr. S.K. Gambhir, learned Senior Counsel
appearing on behalf of the appellant, submitted :
(i) The High Court committed a serious error in interpreting the provisions
of Section 50 of the Act, inasmuch : (i) Under the Act an existing land use map
has to be published which would indicate broadly the land use proposed in the
planning area and the areas or zones of land allocated for the purposes
mentioned therein; and (ii) As the scheme covers the villages in question, the
same could not have been ignored.
(ii) Having regard to the fact that the scheme provides for construction of
a bypass road of 70 feet width, any construction by the builders would lead to
haphazard development and, thus, would completely destroy the purpose for which
the land was to be reserved for planned development of the residential area.
(iii) Undertaking of haphazard and unplanned development would carry with it
a statutory injunction provided for under Section 53 of the Act, in terms
whereof, if an existing land use map or a draft development plan or a town
development scheme is published, no person is permitted to obtain any
permission for carrying out any development contrary thereto or inconsistent
(iv) The materials on records established that a large number of permissions
were obtained by the private developers which if allowed to be implemented
shall result in haphazard development of colonies and buildings and, thus,
defeat the purpose of the Act.
(v) As Section 50 is not subject to the publication of a final development
plan, as would be evident from the words used therein, namely, 'at any time',
Section 53 would operate as soon as an intention is expressed by issuance of a
notification in terms thereof.
(vi) Section 50 of the Act must be read in the contrast with Section 20
thereof. So read, a town development scheme must be consistent with the
provisions of the existing land use map as well as a draft development plan; as
otherwise the purport and object for which Section 53 has been enacted would
(vii) The Authority constituted under Section 38 being statutorily obligated
to implement the development plan, as would appear from Sections 38(2) and 49
of the Act, the power/duty to prevent haphazard by declaring the town
development scheme must be held to be vested in the Appellant-Authority.
(viii) The State of Madhya Pradesh having framed rules known as 'Madhya
Pradesh Bhumi Vikas Niyam, 1984', (Rules) which are parts of the town
development scheme, keeping in view the fact that the scheme provided for
10,000 houses for the low income group wherefor three major roads were required
to be built up having a width of 75 metres, 60 metres and 36 metres
respectively as also parks, roads, colleges, gardens, playgrounds and green
belts, the purposes for which such scheme had been framed would not be
subserved, if permissions are granted for haphazard and unplanned development.
(ix) In any event, private interest must be waived to public interest.
(x) The High Court committed a manifest error insofar it failed to take into
consideration that the planning area having been extended by a notification
issued by the District Planning Committee, the same would subserve the purpose
of the notification dated 28.10.2005 issued under sub-section (1) of Section 38
of the Act.
28. Mr. Banthia, the learned counsel appearing on behalf of the State had
not made any separate submission before us.
29. Mr. C.A. Sundaram and Mr. Arun Jaitley, learned Senior Counsel appearing
on behalf of the respondents in these appeals, on the other hand, would submit
(i) The land of the respondents being outside the planning area, as notified
by the State of Madhya Pradesh constituting the Appellant- Authority, the
purported town development scheme would not be applicable in relation thereto.
Only because the planning area has been extended by the District Planning
Committee, the same would not ipso fact enlarge the territorial jurisdiction of
the Appellant- Authority.
(ii) Safeguard of public interest has sufficiently been taken care of in
terms of the Act., as upon issuance of a notification under Section 13 of the
Act, the Director only is authorised to sanction a plan for development and
carry out other functions as laid down under Sections 15, 16 and 17 of the Act.
(iii) The committee constituted under Section 17-A of the Act is the only
authority which can consider and suggest modifications in the draft development
plan prepared by the Director under Section 14, whereafter only a draft
development plan can be published in terms of Section 18; sub-section (2)
whereof in turn envisages consideration of objections, suggestions, etc.
(iv) Only upon completion of the procedures laid down in the said provisions
development plan can be sanctioned by the State under Section 19 and, thus, in
the event the State Government has power to make modification in the
development plan, the same would come into operation only from the date of
publication of the notification in the gazette issued under sub-section (4)
(v) Procedure laid down in the provisions of the Act having not been
fulfilled, the impugned action had resulted in breach of law and, thus, the
same had rightly been struck down.
(vi) Chapter V of the Act provides for preparation of zoning plans and the
contents thereof having been prescribed, the safeguards envisaged under
Sections 18 and 19 of the Act would take care of public interest involved,
inasmuch the overall control and development as also land use is vested in the
Director and in that view of the matter unless a final development plan comes
into being, the Appellant-Authority cannot be held to have any jurisdiction
thereover in view of Section 38 of the Act.
(vii) The definition of the 'town development scheme' as contained in
Section 2(u) of the Act presupposes existence of a sanctioned development plan prepared
as per law, and, thus, in absence thereof a town development scheme under
Section 50 cannot be made.
(viii) In view of the fact that the State Government has issued a
notification on 28.10.2005 extending the area of operation of the Appellant- Authority,
the scheme illegally notified by it would not be invalidated.
(ix) Gram Panchayat of the village being the competent authority at the
relevant time having sanctioned the building plan, a vested right had accrued
in favour of the first respondent and such a power having been acknowledged and
accepted under the provisions of the Act, the same cannot be taken away.
Analysis of the statutory provisions :
30. The Act is divided into several chapters. It proceeds on the basis that
steps are required to be taken before a town planning scheme is given effect
to. The State Government is in overall control of the matter relating to town
and country planning.
31. The Director of Town and Country Planning, however, subject to the
control and supervision of the State, exercises such statutory powers which are
conferred upon him. A State is divided into several regions. A regional plan is
finalised whereupon restrictions on use of land or development thereof can be
imposed. Such regional plan is subject to review.
32. Chapter IV of the Act provides for carving out planning areas and
preparation of development plans. Development plans are required to be prepared
and finalised only in relation to the planning areas. An area, however, which
is notified can be sub-divided into planning areas and non- planning areas.
33. Chapter V of the Act deals with the preparation, finalization, review
and modifications of the zonal plan wherewith we are not concerned much in
these appeals. Chapter VI of the Act provides for control of development and
use of land. In terms of Section 24 of the Act, the Director is to control land
use. Preparation of development plan, prohibition of development without
permission and matters connected therewith and incidental thereto are also dealt
with in Chapter VI. Chapter VII of the Act, however, provides for shift of
control in respect of land use and development for the hands of the Director
and, consequently of the State to the Town and Country Development Authority.
Section 38 provides for establishment of Town and Country Development
34. The Act envisages the following steps which are required to be complied
(a) Constitution of a planning area by notification under Section 13.
(b) Compliance of the detailed procedure set out under Sections 14 to 19,
leading to sanction of the development plan under Section 19. The said
procedure envisages compliance of principles of natural justice.
(c) Section 38 provides for establishment of a Town and Country Development
Authority, by notification "for such areas as may be specified in the
notification". Under sub-section (2) thereof, duties of implementation of
the development plan and preparation of the town development scheme have been
cast on the Town and Country Development Authority.
(d) The town development scheme is to be prepared upon following the
procedure set out under Section 50. The said scheme can be prepared only when
there exists a development plan, prepared in accordance with the procedure
prescribed under the Act as envisaged under Sections 14 to 19 and after
notification under Section 38(1). In this regard, reference may be also be made
to Section 2(u) of the Act, which describes a town development scheme to mean a
scheme prepared for implementation of the provisions of the development plan.
35. Before the procedure referred to hereinbefore is applied to the case at
hand, it would appear that the notification dated 13.02.1974 issued under
Section 13 of the Act extending the planning area would not include the land of
the respondents being outside its territorial jurisdiction. By reason of 1977
Notification the villages in question in which the lands of the respondents are
situated, Indore Development Plan, 19991 would not have any application
thereover. The notification issued under Section 38(1) of the Act on
09.05.1977, would, thus, be limited to the area specified under the
notification dated 13.02.1974.
36. A Town and Country Development Authority although may have something to
do with the preparation of the draft development plan. It exercises complete
control, subject of course to the power of the State Government, to give
directions, exercises revisional power, etc. over implementation of the
development plan by making town development schemes.
37. Chapter VIII of the Act deals with special areas. Chapter IX, however,
envisages power of the State Government of supervision and control as also to
issue necessary directions. The State has also the power to review plans for
ensuring conformity. It may also delegate its power from time to time.
Dissolution of authority at the hands of the State is envisaged under Section
76 of the Act.
38. When a planning area is defined, the same envisages preparation of
development plan and the manner in which the existing land use is to be
implemented. A development plan in some statutes is also known as a master
plan. It lays down the broad objectives and parameters wherewith the
development plan is to deal with. It also lays down the geographical splitting
giving rise to preparation and finalization of zonal plans. The zonal plans
contain more detailed and specific maters than the master plan or the
development plan. Town planning scheme or lay-out plan contains further details
on plot-wise basis. It may provide for the manner in which each plot shall be
dealt with as also the matter relating to regulations of development.
39. Once, however, the existing land use is in place, subject to certain
restrictions contained in the Act, the Director would permit land use in the
same manner as is found to be existing.
40. The old laws, in relation thereto, as also the permissions granted by
the local authorities which includes a gram panchayat are permitted to operate
till new laws are framed and/ or till new building regulations are made.
41. When existing land use is in place, use thereof for purposes other than
the existing land use is frozen. However, subject to permission granted by the
Director, the development of land is not frozen.
42. When a draft development plan is prepared, the same is subject to grant
of approval and/ or modification thereof. We will deal with the matter at some
details a little later but at this stage, we may notice that end use of the
land is not frozen until a final sanction plan comes into being. A town planning
scheme, as would appear from its definition contained in Section 2(4) of the
Act, is prepared only for the purpose of implementation of a development plan.
Yet again, we would deal with the question as to whether the same would bring
within its sweep the draft development plan or only final development plan a
little later, but it may be noticed that once a valid town planning scheme
comes into force, indisputably, there may be freezing of land use as also
freezing of development and, thus, a total embargo is placed except in such
cases where the Director had granted permission.
Section 53 of the Act, however, in the event a valid town planning scheme is
made, places a total embargo both on land use as also the development.
Even the Director is denuded of its power to issue any further permission.
Existing land use, draft development plan and final development plan
envisage two-stage exercise. In drafting or finalizing a zonal plan, a similar
exercise is undertaken. In making a town development scheme, however, the
process undertaken is a three-stage one inasmuch as an intention therefor is
declared which entails serious consequences and, as noticed hereinbefore, by
reason thereof, a total embargo is imposed both on land use as also the
development. For the said purpose, a time limit within which a draft town
planning scheme has to be finalized is provided but the same can be subject to
modification by the State which ordinarily should be with a view to deal with
the same in line with the final development plan.
Principal questions :
43. In these appeals, principally, we are beset with two questions:
(i) Whether having regard to notification dated 13.02.1974 vis-`-vis the
expansion of the Indore Development Plan, the District Committee in exercise of
its delegated power can automatically extend the area of operation of the
appellant despite the notification constituting it by the State whereby and
whereunder its area of operation was limited to the one covered by the
notification dated 13.02.1974 ? (ii) Whether the appellant authority can
declare its intention in terms of Section 50 of the Act before the development
Competing Interest :
44. There are two competing interests, viz., one, the interest of the State
vis-`-vis the general public and, two, to have better living conditions and the
right of property of an individual which although is not a fundamental right
but is a constitutional and human right.
45. Before we embark upon the questions involved in these appeals, we would
like to make some general observations.
46. Town and country planning involving land development of the cities which
are sought to be achieved through the process of land use, zoning plan and
regulating building activities must receive due attention of all concerned. We
are furthermore not oblivious of the fact that such planning involving highly
complex cities depends upon scientific research, study and experience and,
thus, deserves due reverence.
47. Where, however, a scheme comes into force, although it may cause
hardship to the individual owners as they may be prevented from making the most
profitable use of their rights over property, having regard to the drastic
consequences envisaged thereunder, the statute should be considered in such a
manner as a result whereof greater hardship is not caused to the citizens than
actually contemplated thereby. Whereas an attempt should be made to prevent
unplanned and haphazard development but the same would not mean that the court
would close its eyes to the blatant illegalities committed by the State and/or
the statutory authorities in implementation thereof.
Implementation of such land development as also building laws should be in
consonance with public welfare and convenience. In United States of America zoning
ordinances are enacted pursuant to the police power delegated by the State.
Although in India the source of such power is not police power but if a zoning
classification imposes unreasonable restrictions, it cannot be sustained. The
public authority may have general considerations, safety or general welfare in
mind, but the same would become irrelevant, as thereby statutory rights of a
party cannot be taken away. The courts must make an endeavour to strike a
balance between public interest on the one hand and protection of a
constitutional right to hold property, on the other.
48. For the aforementioned purpose, an endeavour should be made to find out
as to whether the statute takes care of public interest in the matter vis-`-
vis the private interest, on the one hand, and the effect of lapse and/ or
positive inaction on the part of the State and other planning authorities, on
49. The courts cannot also be oblivious of the fact that the owners who are
subject to the embargos placed under the statute are deprived of their valuable
rightful use of the property for a long time. Although ordinarily when a public
authority is asked to perform statutory duties within the time stipulated it is
directory in nature but when it involves valuable rights of the citizens and
provides for the consequences therefor it would be construed to be mandatory in
50. In T. Vijayalakshmi v. Town Planning Member [(2006) 8 SCC 502], this
"15. The law in this behalf is explicit. Right of a person to construct
residential houses in the residential area is a valuable right. The said right
can only be regulated in terms of a regulatory statute but unless there exists
a clear provision the same cannot be taken away. It is also a trite law that
the building plans are required to be dealt with in terms of the existing law.
Determination of such a question cannot be postponed far less taken away.
Doctrine of legitimate expectation in a case of this nature would have a
role to play."
It was further observed:
"18. It is, thus, now well-settled law that an application for grant of
permission for construction of a building is required to be decided in
accordance with law applicable on the day on which such permission is granted.
However, a statutory authority must exercise its jurisdiction within a
reasonable time. (See Kuldeep Singh v. Govt. of NCT of Delhi)"
51. What would be a public purpose in such a matter has been stated in
Prakash Amichand Shah v. State of Gujarat & Others [(1986) 1 SCC 581], whereupon
the State itself relied upon, in the following terms :
"19. In order to appreciate the contentions of the appellant it is
necessary to look at the object of the legislation in question as a whole. The
object of the Act is not just acquiring a bit of land here or a bit of land
there for some public purpose. It consists of several activities which have as
their ultimate object the orderly development of an urban area. It envisages
the preparation of a development plan, allocation of land for various private
and public uses, preparation of a Town Planning Scheme and making provisions
for future development of the area in question. The various aspects of a Town
Planning Scheme have already been set out.
On the final Town Planning Scheme coming into force under Section 53 of the
Act there is an automatic vesting of all lands required by the local authority,
unless otherwise provided, in the local authority. It is not a case where the
provisions of the Land Acquisition Act, 1894 have to be set in motion either by
the Collector or by the Government."
The impugned provision does not subserve such purpose.
52. It is also not a case like State of Gujarat v. Shantilal Mangaldas &
Ors. [1969 (3) SCR 341], that when a development is made, the owner of the
property not only gets much more than what he would have got, if the same
remained undeveloped in the process but also get the benefit of living in a
developed town having good town planning.
53. The courts should, therefore, strive to find a balance of the competing
Human Right Issue :
54. The right of property is now considered to be not only a constitutional
right but also a human right.
55. The Declaration of Human Rights (1789) enunciates under Article 17
"since the right to property is inviolable and sacred, no-one may be
deprived thereof, unless public necessity, legally ascertained, obviously
requires it and just and prior indemnity has been paid". Further under
Article 217 (IIII) of 10th December, 1948, adopted in the General Assembly
Resolution it is stated that : (i) Everyone has the right to own property alone
as well as in association with others. (ii) No-one shall be arbitrarily
deprived of his property.
56. Earlier human rights were existed to the claim of individuals right to
health, right to livelihood, right to shelter and employment etc. but now human
rights have started gaining a multifacet approach. Now property rights are also
incorporated within the definition of human rights. Even claim of adverse
possession has to be read in consonance with human rights.
57. As President John Adams (1797-1801) put it, :
"Property is surely a right of mankind as real as liberty."
Adding, "The moment the idea is admitted into society that property is not
as sacred as the laws of God, and that there is not a force of law and public
justice to protect it, anarchy and tyranny commence".
58. Property, while ceasing to be a fundamental right would, however, be
given express recognition as a legal right, provisions being made that no
person shall be deprived of his property save in accordance with law.
Interpretation of the Act :
59. The Act being regulatory in nature as by reason thereof the right of an
owner of property to use and develop stands restricted, requires strict
construction. An owner of land ordinarily would be entitled to use or develop
the same for any purpose unless there exists certain regulation in a statute or
a statutory rules. Regulations contained in such statute must be interpreted in
such a manner so as to least interfere with the right of property of the owner
of such land. Restrictions are made in larger public interest.
Such restrictions, indisputably must be reasonable one. [See Balram Kumwat
v. Union of India & Ors. (2003) 7 SCC 628; Krishi Utpadan Mandi Samiti
& Ors. v. Pilibhit Pantnagar Beej Ltd. & Anr. (2004) 1 SCC 391; and
Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr. (2004) 2
SCC 747]. The statutory scheme contemplates that a person and owner of land
should not ordinarily be deprived from the user thereof by way of reservation
60. Expropriatory legislation, as is well-known, must be given a strict
61. In Hindustan Petroleum Corporation Ltd. v. Daius Shapur Chenai &
Ors. [(2005) 7 SCC 627], construing Section 5A of the Land Acquisition Act,
this Court observed :
"6. It is not in dispute that Section 5-A of the Act confers a valuable
right in favour of a person whose lands are sought to be acquired. Having
regard to the provisions contained in Article 300-A of the Constitution, the
State in exercise of its power of "eminent domain" may interfere with
the right of property of a person by acquiring the same but the same must be
for a public purpose and reasonable compensation therefor must be paid.
7. Indisputably, the definition of public purpose is of wide amplitude and
takes within its sweep the acquisition of land for a corporation owned or
controlled by the State, as envisaged under sub-clause (iv) of clause (f) of
Section 3 of the Act. But the same would not mean that the State is the sole
judge therefor and no judicial review shall lie. (See Jilubhai Nanbhai Khachar
v. State of Gujarat.)"
It was further stated :
"29. The Act is an expropriatory legislation. This Court in State of
M.P. v. Vishnu Prasad Sharma observed that in such a case the provisions of the
statute should be strictly construed as it deprives a person of his land
without consent. [See also Khub Chand v. State of Rajasthan and CCE v. Orient
Fabrics (P) Ltd.] There cannot, therefore, be any doubt that in a case of this
nature due application of mind on the part of the statutory authority was
62. In State of Rajasthan & Ors. v. Basant Nahata [JT 2005 (8) SC 171],
it was opined :
"In absence of any substantive provisions contained in a parliamentary
or legislative act he cannot be refrained from dealing with his property in any
manner he likes.
Such statutory interdict would be opposed to one's right of property as
envisaged under Article 300A of the Constitution of India."
63. In State of Uttar Pradesh v. Manohar [(2005) 2 SCC 126], a Constitution
Bench of this Court held :
"Ours is a constitutional democracy and the rights available to the
citizens are declared by the Constitution.
Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the
Constitution, Article 300-A has been placed in the Constitution, which reads as
"300-A. Persons not to be deprived of property save by authority of
law.No person shall be deprived of his property save by authority of law."
This is a case where we find utter lack of legal authority for deprivation
of the respondent's property by the appellants who are State authorities"
64. In Jilubhai Nanbhai Khachar & Ors. v. State of Gujarat and Anr.
[(1995) Supp. 1 SCC 596], the law is stated in the following terms :
"The right of eminent domain is the right of the sovereign State,
through its regular agencies, to reassert, either temporarily or permanently,
its dominion over any portion of the soil of the State including private
property without its owner's consent on account of public exigency and for the
public good. Eminent domain is the highest and most exact idea of property
remaining in the Government, or in the aggregate body of the people in their
sovereign capacity. It gives the right to resume possession of the property in
the manner directed by the Constitution and the laws of the State, whenever the
public interest requires it. The term 'expropriation' is practically synonymous
with the term "eminent domain"
It was further observed :
"48. The word 'property' used in Article 300-A must be understood in
the context in which the sovereign power of eminent domain is exercised by the
State and property expropriated. No abstract principles could be laid. Each
case must be considered in the light of its own facts and setting. The phrase
"deprivation of the property of a person" must equally be considered
in the fact situation of a case. Deprivation connotes different concepts.
Article 300-A gets attracted to an acquisition or taking possession of private
property, by necessary implication for public purpose, in accordance with the
law made by Parliament or a State Legislature, a rule or a statutory order
having force of law. It is inherent in every sovereign State by exercising its power
of eminent domain to expropriate private property without owner's consent.
Prima facie, State would be the judge to decide whether a purpose is a public
purpose. But it is not the sole judge. This will be subject to judicial review
and it is the duty of the court to determine whether a particular purpose is a
public purpose or not. Public interest has always been considered to be an
essential ingredient of public purpose. But every public purpose does not fall
under Article 300-A nor every exercise of eminent domain an acquisition or
taking possession under Article 300-A. Generally speaking preservation of
public health or prevention of damage to life and property are considered to be
public purposes. Yet deprivation of property for any such purpose would not
amount to acquisition or possession taken under Article 300-A. It would be by
exercise of the police power of the State. In other words, Article 300-A only
limits the powers of the State that no person shall be deprived of his property
save by authority of law. There has to be no deprivation without any sanction
of law. Deprivation by any other mode is not acquisition or taking possession
under Article 300-A. In other words, if there is no law, there is no
deprivation. Acquisition of mines, minerals and quarries is deprivation under
65. Rajendra Babu, J (as the learned Chief Justice then was) in Sri
Krishnapur Mutt, Udupi v. N. Vijayendra Shetty and Anr. [1992 (3) Kar.L.J.
326] observed :
"The restrictions imposed in the planning law though in public interest
should be strictly interpreted because they make an inroad into the rights of a
private persons to carry on his business by construction of a suitable building
for the purpose and incidentally may affect his fundamental right if too widely
66. The question has also been addressed by a decision of the Division Bench
of this Court in Pt. Chet Ram Vashist (Dead) by LRs. v. Municipal Corporatiopn
of Delhi [(1995) 1 SCC 47], wherein R.M. Sahai, J., speaking for the Bench
"6. Reserving any site for any street, open space, park, school etc. in
a layout plan is normally a public purpose as it is inherent in such
reservation that it shall be used by the public in general. The effect of such
reservation is that the owner ceases to be a legal owner of the land in dispute
and he holds the land for the benefit of the society or the public in general.
It may result in creating an obligation in nature of trust and may preclude the
owner from transferring or selling his interest in it. It may be true as held
by the High Court that the interest which is left in the owner is a residuary
interest which may be nothing more than a right to hold this land in trust for
the specific purpose specified by the coloniser in the sanctioned layout plan.
But the question is, does it entitle the Corporation to claim that the land so
specified should be transferred to the authority free of cost. That is not made
out from any provision in the Act or on any principle of law. The Corporation by
virtue of the land specified as open space may get a right as a custodian of
public interest to manage it in the interest of the society in general. But the
right to manage as a local body is not the same thing as to claim transfer of
the property to itself. The effect of transfer of the property is that the
transferor ceases to be owner of it and the ownership stands transferred to the
person in whose favour it is transferred. The resolution of the Committee to
transfer land in the colony for park and school was an order for transfer
without there being any sanction for the same in law."
[See also Raju S. Jethmalani v. State of Maharashtra [(2005) 4 SCALE 688].
Application of the Act :
67. While determining the questions involved in these appeals, we are not
unmindful that the purpose and object of the town development scheme is a
laudable one insofar as it purports to allocate areas covered by Scheme No.
164 for residential purposes and a bypass road of 70 feet wide is to be
built along the eastern periphery of the area covered by the Scheme. The
question, however, would be as to whether the development can be said to be a
haphazard one or would completely destroy the purpose for which the land was to
be reserved for planned development of the residential area.
68. The process started in the year 1974. Only 37 villages were included
within the planning area. It may be that with the passage of time the
requirements for a better planned city were felt, but it is difficult to
conceive that the State of Madhya Pradesh while constituting the appellant authority
in terms of Section 38(1) of the Act by reason of its notification dated
09.05.1977 was wholly oblivious thereto. When the Act came into force the
existing land use was determined. The area for which, thus, land could be put
to use was fixed. No land could be used for a purpose which is not envisaged by
69. A Director who is a very high ranking officer and is answerable only to
the State is appointed under the Act to put an eye over the development
activities; be it by the developers or others. Apart from the fact that gram
panchayat which is a local authority within the meaning of the provisions of
the Act had the occasion to consider each application for grant of sanction of
the building plans which presumably would require to be drawn directly in terms
of the building bylaws framed under a statute which in turn gave rise to a
presumption that it had received an approval of the State, in the event of any
further development the permission of the Director is necessary. The Director,
however, being an authority under the Act was statutorily enjoined to perform
his duties within the four-corners of the statute. Whereas the said statutory
authority is required to apply its mind before an application for grant of
development of land is filed, which itself having regard to its wide definition
is extensive in nature, to the requirements of law, it cannot unduly withhold
such permission if the application otherwise fulfils the statutory conditions. The
Act itself envisages that in the event an application is not disposed of within
the time specified, a development plan would be deemed to be sanctioned. [See
Section 30(5) of the Act] Land use, therefore, is restricted. The manner in
which the permission for construction of building is to be granted is also
70. Respondents obtained permission for development from the competent
authority for diversion of land use as far back as on 12.01.1989.
They had applied for and were granted sanction of building plan by the gram
panchayat in the year 1991. No step was taken by the statutory authorities or
the appellant herein to notify a draft development plan. It was not notified
till 2000. No further step was taken pursuant thereto or in furtherance thereof.
Respondents filed an application before the Director for grant of permission
only on 2.12.2004 which was rejected by reason of an order dated 14.12.2004
purported to be for the following reason:
"subjected land of village Bicholi Hapsi has been included in the
proposed Development Scheme No. 164 of Indore Development Authority."
71. We may notice two precise submissions of Mr. Venugopal at this stage:
(i) The development plan includes draft development plan;
(ii) Existence of any draft development plan would authorise the appellant authority
to declare its intention to prepare a town development scheme at any time.
72. The draft development plan was published on 27.06.2003 although it was
sent for consideration of the State in terms of Section 19 of the Act on
9.10.2003. The same was returned to the appellant authority stating that plan
to be prepared for the projected population in the year 2021 on or about
4.01.2005. A draft development plan 2021 was published only on 13.07.2007
whereas the declaration by the appellant authority was notified on 20.08.2004.
Submission of Mr. Venugopal that a development plan would include a draft
development plan is sought to be made as the statute has interchangeably used
draft development plan, sanctioned development plan as development plan and,
secondly, on the strength of clause (iv) of Sub-section (1) of Section 18 of
the Act laying down that a notice shall be issued thereunder containing inter
alia the particulars, viz., the provisions for enforcing the draft development
plan and stating the manner in which permission for development may be
73. We do not see any force in the said argument. It is possible to enforce
a draft development plan in a given case, but the statute must specifically provide
for the same. But, a draft development plan which has not attained finality
cannot be held to be determinative of the rights and obligations of the parties
and, thus, it can never be implemented. Section 50 of the Act explicitly states
that the authority may declare its intention to prepare a town development
scheme which having regard to Section 2(u) of the Act must be read to mean
declaration of its implementation to prepare a scheme for the implementation of
the provisions of a development plan.
74. We have come across some legislations, as for example, The Himachal
Pradesh Town and Country Planning Act, 1977 where a provision has been made for
preparation of an interim development plan. It is not in dispute that
legislations relating to town and country planning are somewhat similar. Had
the legislature thought of implementation of a draft development plan, they
could have also provided for an interim development plan which ipso facto would
have been enforceable.
75. A development plan even in ordinary parlance can be implemented only
when it is final and not when it is at the draft stage, i.e., susceptible to
changes. Not only land use may make geographical change, the other details may
also undergo a change. The objections and suggestions invited from the general
public as also the persons affected may be accepted. There may be realignment.
It may undergo serious modifications. Once the legislature has defined a term
in the interpretation clause, it is not necessary for it to use the same expression
in other provisions of the Act. It is well-settled that meaning assigned to a
term as defined in the interpretation clause unless the context otherwise
requires should be given the same meaning.
76. It is also well-settled that in the absence of any context indicating a
contrary intention, the same meaning would be attached to the word used in the
later as is given to them in the earlier statute. It is trite that the words or
expression used in a statute before and after amendment should be given the same
meaning. It is a settled law that when the legislature uses the same words in a
similar connection, it is to be presumed that in the absence of any context
indicating a contrary intention, the same meaning should attach to the words.
[See Lenhon v. Gobson & Howes Ltd., (1919) AC 709 at 711, Craies on Statute
Law, Seventh Edition, page 141 and G.P. Singh's Principles of Statutory
Interpretation, Tenth edition, page 278]
77. In Venkata Subamma and another v. Ramayya and others [AIR 1932 PC 92],
it is stated that an Act should be interpreted having regard to its history,
and the meaning given to a word cannot be read in a different way than what was
interpreted in the earlier repealed section.
78. Land use, development plan and zonal plan provided for the plan at macro
level whereas the town planning scheme is at a micro level and, thus, would be
subject to development plan. It is, therefore, difficult to comprehend that
broad based macro level planning may not at all be in place when a town
planning scheme is prepared.
79. Once a final plan comes into force, steps inter alia are taken for
acquisition of the property. Section 34 of the Act takes care of such a
contingency. The town development scheme, as envisaged under Section 49 of the
Act, specifically does it. Out of nine clauses contained in Section 49, six
relate to acquisition of land for different purposes. Clauses (v), (viii) and
(ix) only refer to undertaking of such buildings or construction of work by the
authority itself, reconstructions for the purpose of buildings, roads, drains,
sewage lines and the similar amenities and any other work of a nature such as
would bring about environmental improvements.
80. If the submission of Mr. Venugopal is accepted, a purpose which is
otherwise not contemplated under Chapter IV would be brought in by side door in
Chapter VII. It is well-settled that would cannot be done directly cannot be
permitted to be done indirectly.
81. The purpose of declaring the intent under Section 50(1) of the Act is to
implement a development plan. Section 53 of the Act freezing any other
development is an incidence arising consequent to the purpose, which purpose is
to implement a development plan. If the purpose of declaring such an intention
is merely to bring into play Section 53, and thereby freeze all development, it
would amount to exercise of the power of Section 50(1) for a collateral
purpose, i.e., freezing of development rather than implementation of a
development plan. The collateral purpose also will be to indirectly get over
the fact that an owner of land pending finalization of a development plan has
all attendant rights of ownership subject to the restraints under Section 16.
If the declaration of intent to formulate a town development scheme is to get
over Section 16 and freeze development activities under Section 53, it would
amount to exercise of power for a collateral purpose.
82. A bare perusal of Sections 17 and 49 would show that it is the
development plan which determines the manner of usage of the land and the town
development scheme enumerates the manner in which such proposed usage can be
implemented. It would follow that until the usage is determined through a
development plan, the stage of manner of implementation of such proposed usage
cannot be brought about. It would also therefore follow that what is
contemplated is the final development plan and not a draft development plan,
since until the development plan is finalized it would have no statutory or
legal force and the land use as existing prior thereto with the rights of usage
of the land arising therefrom would continue.
83. To accept that it is open to the town development authority to declare
an intention to formulate a town development scheme even without a development
plan and ipso facto bring into play a freeze on usage of the land under Section
53 would lead to complete misuse of powers and arbitrary exercise thereof
depriving the citizen of his right to use the land subject to the permitted
land use and laws relating to the manner of usage thereof.
This would be an unlawful deprivation of the citizen's right to property
which right includes within it the right to use the property in accordance with
the law as it stands at such time. To illustrate the absurdity to which such an
interpretation could lead it would then become open to the town development
authority to notify an intent to formulate a town development scheme even in
the absence of a development plan, freeze all usage of the property by a owner
thereof by virtue of Section 53 of the Act, and should no development plan be
finalized within 3 years, such scheme would lapse and the authority thereupon
would merely notify a fresh intent to formulate a town development scheme and
once again freeze the usage of the land for another three years and continue
the same ad infinitum thereby in effect completely depriving the citizen of the
right to use his property which was in a manner otherwise permitted under law
as it stands.
84. The essence of planning in the Act is the existence of a development
plan. It is a development plan, which under Section 17 will indicate the areas
and zones, the users, the open spaces, the institutions and offices, the
special purposes, etc. Town planning would be based on the contents of the
development plan. It is only when the development plan is in existence, can a
town planning scheme be framed. In fact, unless it is known as to what the
contents of a possible town planning scheme would be, or alternatively, whether
in terms of the development plan such a scheme at all is required, the
intention to frame the scheme cannot be notified.
85. Section 50 of the Act no doubt uses the word "at any time".
The question, however, is what that would imply. The town planning scheme, it
would bear repetition to state, is made for the purpose of implementation of a
development plan. Ordinarily, therefore, it would envisage the time period for
coming into force of the development plan and the expiry thereof.
Unless such a construction is to be given to the words "at any
time", it would lead to manifest injustice and absurdity which is not
contemplated by the statute. For giving an effective meaning to the provisions
of Section 50 of the Act, the same is required to be read in the context of
other provisions of the statute and in particular the interpretation clauses
which we have noticed hereinbefore.
86. Section 50(1) of the Act provide for declaration of this intention to
prepare town development scheme "at any time". The words "at any
do not confer upon any statutory authority an unfettered discretion to frame
the town development scheme whenever it is so pleases. The words "at any
time" are not charter for the exercise of an arbitrary decision as and
when a scheme has to be framed. The words "at any time" have no exemption
from all forms of limitation for unexplained and undue delay. Such an
interpretation would not only result in the destruction of citizens' rights but
would also go contrary to the entire context in which the power has been given
to the authority.
87. The words "at any time" have to be interpreted in the context
in which they are used. Since a town development scheme in the context of the
Act is intended to implement the development plan, the declaration of intention
to prepare a scheme can only be in the context of a development plan. The
starting point of the declaration of the intention has to be upon the
notification of development plan and the outer limit for the authority to frame
such a scheme upon lapsing of the plan. That is the plausible interpretation of
the words "at any time" used in Section 50(1) of the Act.
[See State of H.P. & Ors. v. Rajkumar Brijender Singh & Ors., (2004)
10 SCC 585]
88. For construing a statute of this nature, we are dealing with, rule of
purposive construction has to be applied.
89. In Francis Bennion's Statutory Interpretation, purposive construction
has been described as under :
"A purposive construction of an enactment is one which gives effect to
the legislative purpose by (a) following the literal meaning of the enactment
where that meaning is in accordance with the legislative purpose (in this Code
called a purposive-and-literal construction), or (b) applying a strained
meaning where the literal meaning is not in accordance with the legislative
purpose (in the Code called a purposive-and-strained construction)."
[See also Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action
Group and Ors., (2006) 3 SCC 434 and National Insurance Co. Ltd.
v. Laxmi Narain Dhut, 2007 (4) SCALE 36]
90. In Maruti Udyog Ltd. v. Ram Lal and Others [(2005) 2 SCC 638], while
interpreting the provisions of Industrial
Disputes Act, 1947, the rule of purposive construction was followed.
91. In Reserve Bank of India v. Peerless General Finance and Investment Co.
Ltd. [(1987) 1 SCC 424] this Court stated:
"If a statute is looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such context, its scheme, the
sections, clauses, phrases and words may take colour and appear different than
when the statute is looked at without the glasses provided by the context. With
these glasses we must look at the Act as a whole and discover what each
section, each clause, each phrase and each word is meant and designed to say as
to fit into the scheme of the entire Act"
92. In 'The Interpretation and Application of Statutes' by Reed Dickerson,
the author at p.135 has discussed the subject while dealing with the importance
of context of the statute in the following terms:
"... The essence of the language is to reflect, express, and perhaps
even affect the conceptual matrix of established ideas and values that
identifies the culture to which it belongs. For this reason, language has been called
"conceptual map of human experience".' [See also High Court of
Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712, Indian
Handicrafts Emporium and Others v. Union of India and Others, (2003) 7 SCC 589
and Deepal Girishbhai Soni and Others v. United India Insurance Co. Ltd.,
Baroda, (2004) 5 SCC 385, para 56] Delegation :
93. An area conceived of under the Act, as noticed hereinbefore, consists of
both plan area and non-plan area. Development of plan area may be in phases. A
master plan may be followed by a zonal plan and a zonal plan may be followed by
a town development scheme.
94. The limit of Indore planning area was specified by a notification dated
13.02.1974 in terms of Sub-section (1) of Section 13 of the Act. Appellant Authority
was constituted by the State of Madhya Pradesh in exercise of its power under
Section 38(1) of the Act for the area comprised within the Indore planning as
specified in the notification dated 13.02.1974. The State in exercise of its
jurisdiction under Sub-section (1) of Section 75 of the Act delegated its power
conferred upon it under Sections 13 and 47A of the Act upon the District
Planning Committee. No power under Section 38 was delegated. The District
Planning Committee exercises its jurisdiction pursuant to the said delegation
in terms of a notification dated 13.11.2000 extending the Indore Development
Planning Area to 152 villages. The villages Bicholi and Kanadia were not
included in the notification dated 12.08.1977. They were included only in the notification
issued by the District Planning Committee.
95. The District Planning Committee, however, issued another notification
amending the planning area to 90 villages only and deleting 62 villages from
its earlier notification.
96. There cannot be any doubt whatsoever that even a delegatee exercises its
power relying on or on the basis of its power conferred upon it by the
delegator, its act would be deemed to be that of the principal as has been held
by this Court in State of Orissa and Others v. Commissioner of Land Records and
Settlement,Cuttack and Others [(1998) 7 SCC 162], this Court held:
"25. We have to note that the Commissioner when he exercises power of
the Board delegated to him under Section 33 of the Settlement Act, 1958, the
order passed by him is to be treated as an order of the Board of Revenue and
not as that of the Commissioner in his capacity as Commissioner. This position
is clear from two rulings of this Court to which we shall presently refer. The
first of the said rulings is the one decided by the Constitution Bench of this
Court in Roop Chand v.
State of Punjab 3 . In that case, it was held by the majority that where the
State Government had, under Section 41(1) of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948, delegated its
appellate powers vested in it under Section 21(4) to an "officer", an
order passed by such an officer was an order passed by the State Government
itself and "not an order passed by any officer under this Act" within
Section 42 and was not revisable by the State Government. It was pointed out
that for the purpose of exercise of powers of revision by the State under
Section 42 of that Act, the order sought to be revised must be an order passed
by an officer in his own right and not as a delegate of the State.
The State Government was, therefore, not entitled under Section 42 to call
for the records of the case which was disposed of by an officer acting as its
97. Whether issuance of notification by the delegatee would automatically
extend the jurisdiction of the appellant is the question. Before we consider
the legal issues involved, we may notice that the appellant filed an
application before the High Court wherein it was stated:
"2. The respondent no. 2 submits that though in 2004 itself the State
Government had in principle agreed to extend the area of the Indore Development
Authority u/s 38 of the Adhiniyam, the said decision could not be implemented
because of certain procedural and other difficulties. Subsequently, when the
respondent no. 2 took up the matter with the State Government, it insisted that
in the absence of a formal request from the IDA it could not extend its area
u/s 38 of the Adhiniyam.
Accordingly, the respondent no. 2 had submitted its formal request by its
aforesaid letter dated 14/10/2005."
98. The State, it is interesting to note, took a similar plea when the
appellant authority sought permission for new Transport Nagar Scheme on 265
hectares of land situated in village Mundrla Nayata by its letter dated
"Please refer the reference letter by which the Indore Development
Authority sought permission for new Transport Nagar Scheme on 265 hectares of
land situated in village Mundrla Nayata.
(1) In this regard opinion of law department has been received and as per
that in the year 1977 the areas of Indore Development Authority was prescribed
whereas the questioned scheme is failing beyond the prescribed operational
(2) Although as per letter dated 28th June, 2002, the planning area of
Indore city is extended but the operational area of Indore Development
Authority has not been extended. At present, Indore Development Plan, 1991 is
in force and new Development Plan is being prepared.
(3) Thus, the Indore Development Authority is not competent to declare
"Town Development Scheme"
beyond its prescribed operational area."
99. Yet again, the State in exercise of its power under Section 38(1) of the
Act notified planning area confirming to the one identified by the District
Planning Committee in terms of its notification dated 28.10.2005.
How State understood it :
100. Application of the principle of executive construction would lead to a
conclusion that the State and the appellant themselves proceeded on the basis
that in terms of the notification issued by the District Planning Committee,
the area of operation of the appellant was not extended.
101. In G.P. Singh's 'Principles of Statutory Interpretation, 10th Edn. at
319, it is stated :
"But a uniform and consistent departmental practice arising out of
construction placed upon an ambiguous statute by the highest executive officers
at or near the time of its enactment and continuing for a long period of time
is an admissible aid to the proper construction of the statute by the Court and
would not be disregarded except for cogent reasons. The controlling effect of
this aid which is known as 'executive construction' would depend upon various
factors such as the length of time for which it is followed, the nature of
rights and property affected by it, the injustice result from its departure and
the approval that it has received in judicial decisions or in legislation.
Relying upon this principle, the Supreme Court in Ajay Gandhi v. B. Singh
having regard to the fact that the President of the Income Tax Appellate
Tribunal had been from its inception in 1941 exercising the power of transfer
of the members of the Tribunal to the places where Benches of the Tribunal were
functioning, held construing sections 251(1) and 255(5) of the Income Tax Act
that the President under these provisions has the requisite power of transfer
and posting of its members. The court observed :
"For construction of a statute, it is trite, the actual practice may be
taken into consideration."
Contemporary official statements throwing light on the construction of a
statute and statutory instruments made under it have been used as contemporanea
expositio to interpret not only ancient but even recent statute both in England
[See also S.B. Bhattacharjee v. S.D. Majumdar & Ors., Civil Appeal
arising out of S.L.P. (Civil) No. 3413 of 2006, disposed of today].
Exercise of delegated power effect of :
102. The State exercises its different power for different purposes. Issuing
notification of a planning area, whether named or not, for the purpose of
Section 13(1) is different from the one for which a development authority is
created within the meaning of Section 38(1) of the Act. The State in a given
situation may appoint more than one authority for the same planned area.
The State delegated its power upon the District Planning Authority under
Section 38 of the Act. The appellant authority was created for a definite
purpose. Its jurisdiction was limited to the area notified. When so creating,
although 1974 notification was referred to, the same was only for the purpose
of limiting the area of operation of the appellant authority. The principle of
legislation by incorporation was applied and not the principle of legislation
103. The difference between the two principles is well-known. Whereas in the
case of the former, a further notification amending the ambit or scope of the
statute would be necessary, if the statute incorporated by reference is
amended, in the latter it would not be necessary.
104. In Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors. [AIR 2005 SC
3593], this Court observed:
"9. Adopting or applying an earlier or existing Act by competent
Legislature to a later Act is an accepted device of Legislation. If the
adopting Act refers to certain provisions of an earlier existing Act, it is
known as legislation by reference. Whereas if the provisions of another Act are
bodily lifted and incorporated in the Act, then it is known as legislation by
incorporation. The determination whether a legislation was by way of
incorporation or reference is more a matter of construction by the courts
keeping in view the language employed by the Act, the purpose of referring or
incorporating provisions of an existing Act and the effect of it on the
day-to-day working. Reason for it is the courts' prime duty to assume that any
law made by the Legislature is enacted to serve public purpose.."
105. It is furthermore a well-settled principle of law that a delegatee must
exercise its jurisdiction within the four-corners of its delegation. If it
could not exercise its delegated power for the purpose of creation of the
appellant authority or extended its jurisdiction, in our opinion, it cannot be
done by amendment of a notification issued under Section 13(1) of the Act.
106. We may at this juncture notice the effect of the notifications issued
by the authority :
? It is a matter of record that the notification issued on 13.02.1974 under
Section 13 notifying the planning area, did not include land of Respondent No.
? It is also a matter of record that the Indore Development Plan, 1991
notified in 1975 does not admittedly include the village in which the land of
Respondent No. 1 is situate.
? The notification issued under Section 38(1) of the Act on 09.05.1977 is
also limited to the area specified in the notification dated 13.02.1974 and
admittedly does not include the land of Respondent No. 1.
107. Admittedly, the villages in question had been included by the State in
its notification issued on 28.10.2005. Prior thereto, the said villages having
not been included within the area of operation of the appellant authority, any
action taken either by way of its intention to frame a town planning scheme or
otherwise shall be wholly illegal and without jurisdiction. It would render its
act in relation to the said villages a nullity.
108. It is, therefore, difficult for us to accept the submission of Mr.
Venugopal and Mr. Gambhir that the notification dated 13.11.2000 subsumes in
the notification dated 12.08.1977.
109. For the reasons aforementioned, we do not have any other option but to
uphold the impugned judgment of the High Court.
110. We may, however, observe that several other contentions, as noticed
hereinbefore, have been raised before us but we do not find any necessity to go
Should we issue Mandamus ? 111. Before parting, however, we must notice a
submission of Mr. C.A.
Sundaram, learned counsel appearing on behalf of the respondents, to the
effect that the High Court committed a manifest error insofar as it limited its
direction only to the following:
"The impugned order dated 17.5.2006 of the learned Single Judge in W.P.
No. 4 of 2005 is set aside and the notification dated 24.8.2004 of the Indore
Development Authority insofar as it applies to village Bicholi Hapsi and the
communication of the Joint Director, Town and Country Planning, Indore to the
appellant that he cannot approve the plan for construction of the house of the
appellant because of the publication of the Draft Scheme No. 164 U/s. 50(2) of
the Adhiniyam are quashed and the Director is directed to reconsider the
application of the petitioner for permission to undertake construction of the
house in accordance with the provisions of the Adhiniyam and the observations
in this judgment"
112. The learned counsel would submit that the said direction is not correct
as the High Court should have directed the Director to consider the
respondents' application in accordance with the law as it existed at the relevant
point of time. We do not subscribe to the said view as it is now well-known
that that where a statute provides for a right, but enforcement thereof is in
several stages, unless and until the conditions precedent laid down therein are
satisfied, no right can be said to have been vested in the person concerned.
113. In Director of Public Works v. Ho Po Sang [1961 AC 901 : (1961) 2 All
ER 721], the Privy Council considered the said question having regard to the
repealing provisions of the Landlord and Tenant Ordinance, 1947 as amended on
9-4-1957. It was held that having regard to the repeal of Sections 3-A to 3-E,
when applications remained pending, no accrued or vested right was derived
"In summary, the application of the second appellant for a rebuilding
certificate conferred no right on him which was preserved after the repeal of
Sections 3-A to 3-E, but merely conferred hope or expectation that the
Governor- in-Council would exercise his executive or ministerial discretion in
his favour and the first appellant would thereafter issue a certificate.
Similarly, the issue by the first appellant of notice of intention to grant a
rebuilding certificate conferred no right on the second appellant which was
preserved after the repeal, but merely instituted a procedure whereby the
matter could be referred to the Governor-in-Council. The repeal disentitled the
first appellant from thereafter issuing any rebuilding certificate where the
matter had been referred by petition to the Governor-in-Council but had not
been determined by the Governor."
[See also Lakshmi Amma v. Devassy [1970 KLT 204] 114. The question again
came up for consideration in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd.
[(2004) 1 SCC 663], wherein this Court categorically held :
"The context in which the respondent Company claims a vested right for
sanction and which has been accepted by the Division Bench of the High Court,
is not a right in relation to ownership or possession of any property for which
the expression vest is generally used. What we can understand from the claim of
a vested right set up by the respondent Company is that on the basis of the
Building Rules, as applicable to their case on the date of making an
application for sanction and the fixed period allotted by the Court for its
consideration, it had a legitimate or settled expectation to obtain the
sanction. In our considered opinion, such settled expectation, if any, did not
create any vested right to obtain sanction. True it is, that the respondent
Company which can have no control over the manner of processing of application
for sanction by the Corporation cannot be blamed for delay but during pendency
of its application for sanction, if the State Government, in exercise of its
rule-making power, amended the Building Rules and imposed restrictions on the
heights of buildings on G.T. Road and other wards, such settled expectation has
been rendered impossible of fulfilment due to change in law. The claim based on
the alleged vested right or settled expectation cannot be set up against
statutory provisions which were brought into force by the State Government by
amending the Building Rules and not by the Corporation against whom such vested
right or settled expectation is being sought to be enforced. The vested right
or settled expectation has been nullified not only by the Corporation but also
by the State by amending the Building Rules. Besides this, such a settled
expectation or the so-called vested right cannot be countenanced against public
interest and convenience which are sought to be served by amendment of the
Building Rules and the resolution of the Corporation issued thereupon."
115. In Union of India v. Indian Charge Chrome [(1999) 7 SCC 314], yet again
this Court emphasized :
"The application has to be decided in accordance with the law
applicable on the date on which the authority granting the registration is
called upon to apply its mind to the prayer for registration."
116. In S.B. International Ltd. v. Asstt. Director General of Foreign Trade
[(1996) 2 SCC 439], this Court repelled a contention that the authorities
cannot take advantage of their own wrong viz. delay in issuing the advance
licence, stating :
"We have mentioned hereinbefore that issuance of these licences is not
a formality nor a mere ministerial function but that it requires due
verification and formation of satisfaction as to compliance with all the
[See also Kuldeep Singh v. Govt. NCT of Delhi [(2006) 5 SCC 702] 117. For
the reasons aforementioned, there is no merit in these appeals which are
dismissed accordingly. There shall, however, be no order as to costs.
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