RAJENDRA SHAN KAR SHUKLA & ORS. ETC. v. STATE OF CHHATTISGARH &OR$. ETC.

p. 778 Copy page pinpoint

A Chairman of Respondent No. 2-RDA in the Board meeting held on 21.6.2010 and 22.6.2010. Therefore, the entire exercise made by RDA under Section 50 (5) of the Act has been rendered otiose and an empty formality in the light of the decisions of this Court mentioned supra and in view of the B · aforesaid undisputed facts in relation to the action taken by the Respondent No. 1-State Government, to give permission only after applying its mind independently on the materials submitted by the Respondent No. 2-RDA which is not done by the State Government and therefore, the power exercised by the State Government in sanctioning the proposed scheme of Respondent .No. 2- RDA has rendered otiose. It is a well established principle in the Indian jurisprudence that no one can be a judge in his own case. The fact has been establislied by various decisions of this Court. It was held in the case of Ml s. J. Mahapatra and Co. and Anr. v. State of Orissa & Anr. 14 as under:

"12. There is, however, a.n exception to the above rule that no men shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which ha has to decide, may be required to adjudicate ifthere is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constitutefl. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. G Thus, in The Judges v. Attorney-General for Saskatchewan 53 TLR 464, the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of H "AIR 1984 SC 1572

RAJENDRASHANKAR SHUKLA v. STATE OF 779. CHHATTISGARH [V. GOPALAGOWDA, J.]

King's Bench and of the District Courts of the Province A of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act ex necessitate. The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters. The High B Court, however, wrongly applied this doctrine to the author-members of the Assessment Sub-Committee. It is true, the members of this Sub-Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were C holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director, Higher Education, etc. There was, however, nothing to prevent those whose books were submitted for selection from D Jointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such nonofficial author-members from resigning from the committee on the ground of their interest in the matter."

Therefore, in the light of the reasons mentioned by us above, we are of the considered view that there is total lack of application of mind by the Respondent No. 1- State Government in not taking into consideration all the relevant aspects while declaring the KVTDS as well as the finance Scheme proposed by the Respondent No. 2- RDA. The Respondent No. 1- State Government could not have sanctioned the aforesaid Scheme as the same is in contravention to the procedure laid down comprehensively in Section 50 of the Act of 1973. The initial approval of the Scheme was on 25.1.2008 and approval to add 1900 acres of land to KVTDS dated 10.⁸.2009 was granted by the State · Government without any application of mind and objective H

p. 780 Copy page pinpoint

A consideration by the Respondent No. 1-State Government which fact is expressly clear as the said proposed scheme was neither in accordance with the Development Plan nor did any Zonal Plan which existed at the material point of time. Therefore, for the reasons mentioned by us, we answer this point in favour of the appellants.

Answer to Point No. 2

32Copy pinpoint32. It is contended by the learned senior counsel on behalf of the appellants that the Town Development Scheme KVTDS prepared in the case in hand, is in contravention to the provisions laid down in Section 50 of the Act.

Section 50(1) of the Act of 1973 reads thus:

D "Preparation of Town Development Schemes-

(1) The Town and Country DevelopmentAuthority may, at any time, declare its intention to prepare a Town Development Scheme: E. [Provided that no such declaration of intent shall be made without the prior approval of the State Government). "

FReliance has been placed upon the phrase "at any time" in Section 50(1) of the Act of 1973 by the learned senior counsel on behalf of the appellants contending that it is not a source of arbitrary and unbridled power/discretion to exercise its power arbitrarily but requires study, survey and assessment of need/ requirement of plots for the residents of the area before the intention of the RDA can be declared by the Town and Country Development Authority.

33Copy pinpoint33. In this regard, the learned senior counsel on behalf of the appellants have rightly placed reliance upon the

p. 781 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.]

judgment of this Court in the case of Chairman, Indore Vikas A Pradhikaran (supra), wherein it was held as under:

"80. Section 50(1) of the Act provide for declaration of this intention to prepare town development scheme "at any time". The words "at any time" do not confer upon B any statutory authority an unfettered discretion to frame the town development scheme whenever it 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 c 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. D

81. 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 E 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 F. the plausible interpretation of the words "at any time" used in Section 50(1) oftheAct. (See State of H.P. v. Rajkumar Brijender Singh·" ·

The phrase "at anytime" under Section 50(1) of the Act is not a charter for the exercise of an arbitrary decision as and when G 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 destruction of citizens rights but would also go contrary to the H

p. 782 Copy page pinpoint

A entire context in which the power has been conferred upon the authority.

34Copy pinpoint34. Also, a proviso added to Section 50(1) of the Act in the year 2012 states that a Development Authority can declare B its intention of preparing Town Development Scheme only with the prior approval of the State Government.

35Copy pinpoint35. Section 49 of the Act of 1973 provides forthe matters for which a Town Development Scheme can be prepared. c Section 49 of the Act reads thus: "49. Town Development Scheme-A Town Development Scheme may make provision for any of the following matters:- (i) acquisition, development and sale or leasing of land D for the purpose of town expansion; (ii) acquisition, relaying out of, rebuilding, or relocating areas which have been badly laid out or which has developed or degenerated into a slum; E (iii) acquisition and development of land for public purposes such as housing dev"'lopment, development of shopping centres, cultural centres, administrative centres;

F (iv) acquisition and development of areas for commercial and industrial purposes; (v) undertaking of such building or construction work as may be necessary to provide housing, shopping, commercial and other facilities; G (vi) acquisition of land and its development for the purpose of laying out or remodelling of road and street patterns; (vii) acquisition and development of land for playgrounds, H parks, recreation centres and stadia;

p. 783 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.]

36Copy pinpoint36. Further, frequent changes in the extent of land acquired for the KVTDS by the RDA is a very strong indicator of the fact that there is no rationale behind the proposal of the said Scheme. The RespondenfNo.2- RDA had proposed the area of KVTDS to be 900 acres on 31.7.2006, 1100 acres on

14. 11.2006, 394 acres on 3.6.2008 and eventually 2300 acres on 20. 7.2009, without assigning reasons for coming to such H

p. 784 Copy page pinpoint

A conclusions in expanding the area to the scheme. In view of the above, there is clear non-application of mind on the part of the State Government behind the increase in the sanctioned area of KVTDS from 416.93 acres of land to 2300 acres of land. In fact, in the letter dated 27.⁸.2008 to the Joint Director, B Town and Country Planning Authority, it has been specifically noted that physical survey of the area must be carried out. It is contended by the learned senior counsel on behalf of the appellants that even the letter dated 20. 7 .2009 addressed by Respondent No. 2- RDA to the Respondent No. 1- State C Government admits that survey of the area is being carried out in respect of previous 416.93 acres of land. In the instant case, the proposal to have KVTDS as well as sanction forthe same by the Respondent No. 1- State Government, is not preceded by a survey of the area, which renders the exercise of its power of ex post facto survey into an empty formality which action of it is wholly unsustainable in law.

37Copy pinpoint37. Further, the purpose of the KVTDS as has been cited by the Respondent No. 2- RDA, is only with the purpose of curbing illegal plotting which can be served by regulating development work by exercise of statutory power vested in the Respondent No. 2- RDA under the Act of 1973. On the pretext of regulating development or stopping illegal construction/ plotting, the Respondent No.2- RDA cannot take away the land of the appellants in exercise of the power of eminent domain by the State Government. The Town Development Scheme envisaged under Section 49 of the Act is for the purpose of acquisition, development and sale or leasing of land for the purpose of town expansion. Under Section 49 (i) and (ii) of the Act, the Respondent No. 2- RDA has power only to provide for housing and not for plotting. Reconstruction of plot under Section 49 clause (viii) of the Act, is confined only for the limited purpose of buildings, roads, drains, sewage, sewage lines and other similar amenities.

RAJENDRASHANKAR SHUKLA V. STATE OF 785 CHHATTISGARH [V. GOPALAGOWDA, J.]

Reliance was also placed by the learned senior counsel on behalf of the appellants, on the decision of this Court in the case of Bondu Ramaswamy v. Bangalore Development Authority15 to show that this Court had already expressed its concern about the lackadaisical manner in which the land is acquired by the State Government in favour of the Bangalore B DevelopmentAuthorityfor housing scheme in the metropolitan area without conducting proper enquiry about the need of the· residents of the area and plights of the land owners. It was held in the case as under: c "150. Frequent complaints and grievances in regard to the following five areas, with reference to the prevailing S¥stem of acquisitions governed by Land Acquisition Act, 1894, requires the urgent attention of the state governments and development authorities: D (i) absence of proper or adequate survey and planning before embarking upon acquisition; (ii) indiscriminate use of emergency provisions in Section 17 of the LAAct; E (iii) notification of areas far larger than what is actually required, for acquisition, and then making arbitrary deletions and withdrawals from the acquisitions; (iv) offer of very low amount as compensation by Land F Acquisition Collectors, necessitating references to court in almost all cases; (v) inordinate delay in payment of compensation; and (vi) absence of any rehabilitatory measures. G While the plight of project oustees and landlosers affected by acquisition for industries has been frequently highlighted in the media, there has been very little effort

" (2010) 7 sec 129 H

p. 786 Copy page pinpoint

A to draw attention to the plight of farmers affected by frequent acquisitions for urban development."

156. When BOA prepares a development scheme it is B required to conduct an initial survey about the availability and suitability of the lands to be acquired. While acquiring 16 villages at a stretch, if in respect of any of the .villages, about 30% area of the village is not included in the notification under Section 4(1) though available for c acquisition, and out of the remaining 70% area which is notified, more than half (that is, about 40% of the village area) is deleted when final notification is issued, and the acquisition is only of 30% area which is non-contiguous, it means that there was no proper survey or application of mind when formulating the development scheme or that the deletions were for extraneous or arbitrary reasons.

157. Inclusion of the land of a person in an acquisition notification, is a traumatic experience for the landowner, particularly if he was eking. out his livelihood from that land. If large areas are notified and then large extents are to be deleted, it breeds corruption and nepotism among officials. It also creates hostility, mutual distrust and disharmony among the villagers, dividing them on the lines of "those who can influence and get their lands deleted" and "those who cannot". Touts and middlemen flaunting political connections flourish, extracting money for getting lands deleted. Why subject a large number of citizens to such traumatic experience? Why not plan properly before embarking upon acquisition process? In this case, out of the four villages included at the final stages of finalising the development scheme, irregularities have been found at least in regard to three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition.

p. 787 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.]

158. Where arbitrary and unexplained deletions and exclusions from acquisition, of large extents of notified lands, render the acquisitions meaningless, or totally unworkable, the court will have no alternative but to quash the entire acquisition. But where many land losers have accepted the acquisition and received the compensation, and where possession of considerable portions of . acquired lands has already been taken, and development activities have been carried out by laying plots and even making provisional or actual allotments, those factors have to be taken note of, while granting relief. The Division Bench has made an effort to protect the interests of all parties, on the facts and circumstances, by issuing detailed directions. But implementation of these directions may lead to further litigations and complications."

Section 2 (u) of the Act of 1973 defines a Town Development Scheme as a scheme formulated to implement the developmental plan. In the instant case, the development plan is the Master Plan of Raipur planning area. Therefore, the very definition clearly states that unless master plan allows use of a particular area as 'residential', it is not open for the Respondent No.2- RDA to propose a township or a town development scheme whose land use is at variance with the one provided in the development plan. Till such time as the lands in question is notified for residential use, the Respondent No. 2- RDA cannot propose a Town Development scheme forthe said land.

38Copy pinpoint38. Respondent No.2- RDA is entrusted with a duty to. implement the master plan under Section 38(2) of the Act of G

1973. The resolution dated 5.11.2009 passed by the Respondent No. 2-RDA proposing to the State government to get the land use changed under Section 23A of the Act in order to implement its township project either by itself or the CEO, on their own or in a manner that is inconsistent with the text as H

p. 788 Copy page pinpoint

A well the provisions of the Act of 1973. In this regard, this Court has already laid down the legal principle in the case of Bangalore Medical Trust v. B.S. Muddappa 16, which reads as under:

B "49 ...... There is no Section either in the Act nor any rule was placed to demonstrate that the Chairman alone, as such, could exercise the power of the Authority. There is no whisper nor there is any record to establish that any meeting oftheAuthoritywas held regarding alteration of c the scheme. In any case the power does not vest in the State Government or the Chief Minister of the State. The exercise of power is further hedged by use of the expression, if 'it appears to the Authority'. In legal terminology it visualises prior consideration and objective decision. And all this must have resulted in conclusion that the alteration would have been improvement. Not even one was followed. The Chairman could not have acted on his own. Yet without calling any meeting of the authority or any committee he sent the letter for converting the site. How did it appear to him that it was necessary, is mentioned in the letter dated 21stApril, because the. Chief Minister desired so. The purpose of the Authority taking such a decision is their knowledge of local conditions and what was better for them. That is why participatory exercise is contemplated. If any alteration in Scheme could be done by the Chairman and the Chief Minister then Sub-section (4) of Section 19 is rendered otiose. There is no provision in the Act for alteration in a scheme by converting one site to another, except, of course if it appeared to be improvement. But even that p9wer vested in the Authority not the Government. What should have happened was that the Authority should have applied its mind and must have come to the conclusion H •• (1991) 4 sec 54

p. 789 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.]

that conversion of the site reserved for public park into a A private nursing home amounted to an improvement then only it could have exercised the power. But what happened in fact was that the application for allotment of the site was accepted first and the procedural requirements were attempted to be gone through later and that too by the State Govt. which was not authorised to do so. Not only that the Authority did not apply its mind and take any decision if there was any necessity to alter the Scheme but even if it is assumed that the State Govt. could have any role to play, the entire exercise instead of proceeding from below, that is, from the BOA to State Government proceeded in reverse direction, that, from the State Government to the BOA. ..... "

As per the factual averments of this case, the Respondent No. · D 2- RDA, without any resolution of the Board, on its own motion, addressed a letter dated 31.7.2006 and approached the State Government for change of land use because it had to propose the township in Tikrapara, Devpuri and Boriakhurd villages. Thereafter, KVTDS was also proposed, published, finalised and approved before the land use was changed by the State · Government. Under the provisions of the Act of 1973, the development plan/ Raipur Master Prevised 2021 that is prevailing, the Respondent No. 2- RDA as well as the State Government gave primacy to KVTDS and sought changes in the master plan to suit KVTDS. This is impermissible in law. The finding recorded by the High Court of Chhattisgarh, Bilaspur, in its judgment in this regard that no finality can be attached to the master plan is an erroneous finding. G Accordingly, we are of the opinion that the Town Development Scheme which is KVTDS in the present case, was not prepared in accordance with Section 50 of the Act of 1973 and we hold that KVTDS is ultra vires to the Act of 1973. H

p. 790 Copy page pinpoint

A Answer to Point No. 3

39Copy pinpoint39. Though we have answered point no. 2 in favour of the appellant,.we intend to mention other grounds too, which render KVTDS as illegal. The learned senior counsel on behalf B of the appellants contended that in the absence of a zonal plan, a Town Development Scheme cannot be framed by Respondent No. 2- RDA, and therefore, the acquisition proceedings of the land of the appellants cannot be allowed to sustain. c The town development scheme is always subservient to the master plan as well as the zonal plan, as provided under Section 17 of the Act of 1973, which reads as under:-

"Section 17: Contents of development plal"). A D development plan shall take into account any draft five year and Annual Development plan of the district prepared under the Madhya Pradesh Zila Yojana Samiti Adhiniyam, 1995 (No. 19of1995) in which the planning area is situated ...... " E Master plan falls within the category of broad development plans and is prepared by only after taking into account the Annual Development Reports prepared by constitutionally elected bodies of local panchayats and municipalities etc. A F zonal plan is mandated to be prepared only afterthe publication of the Development Plan. Section 20 of the Act reads thus:

"20. Preparation of Zonal Plans- The Local Authority may on its own motion at any time after the publication of G the development plan, or thereafter if so required by the State Government shall, within the next six months of such requisition, prepare a Zoning Plan" Further, Section 21 of the Act reads thus: H Section 21: Contents of zoning plan. The zoning plan

p. 791 Copy page pinpoint

CHHATTISGARH [V GOPALA GOWDA, J.]

shall "enlarge" the details of the land use as indicated in the development plan .... .. (emphasis laid by the Court)

Thus, it is evident from the language of Sections 20 and 21 of the Act, that a Zonal Plan can be prepared only in adherence to the Development Plan which in the present case is the Raipur Master Plan of 2021.

Next, Section 49 of the Act which provides for the provisions for which a Town Development Scheme can be prepared, has to be read along with Section 21 of the Act, which clearly mentions that the land required for acquisition by the Town and Country Development Authority for the purpose of any development scheme has to be laid down in the Zonal Plan. D

Therefore, a combined reading of Sections 17, 21 and 49 lays down that the Development Plan is the umbrella under which a zonal plan is made for the city. The zonal plan in turn, allocates the land which could be acquired for town E developm~nt schemes. The Respondent No. 2- RDA on the other hand, has taken the following stand in their common counter affidavit dated 23.11.2011 filed in the writ petition proceedings: F ''That, thus, earlier the Master Plan, 2021 is modified as per scheme under Section 23A or the scheme is modified as per Master Plan under Section 52( 1) (b) of the Act, the net results remains that there is no violation of Master Plan, 2021 and therefore, the allegations of the petitioner that the scheme has been formulated and finalised in violation of the Master Plan, 2021 is incorrect"

Therefore, in the absence of a zonal plan in place, the Respondent No. 2-RDA has skipped the legal mandate in place for preparation of a Town Development Scheme.

p. 792 Copy page pinpoint

40Copy pinpoint40. The importance of zonal planning lies in its distinguished characteristic which lays down with sufficient particularity the use to which a particular piece of iand could be put. The object and purpose.of the 1973Act itself foresees that zonal plan is necessary for implementation of a Town l3 Development Scheme. The preamble of the Act clearly discloses that a Town Development Scheme is at best a vehicle to implement the Development Plan and Zonal Plan. The object and purpose of the Act reads thus:

c "An Act to make provision for planning and development and use of land; to make better provision for the preparation of development plans and zoning plans with a view to ensuring town planning schemes are made in a proper manner and their execution is made effective to, ..... " (emphasis laid by this Court)

Therefore, the Object and Purpose of the Act also provides that a Town Development Scheme can be prepared in the presence of a Zonal Plan which in turn has to be prepared for the implementation of the Development Plan.

41Copy pinpoint41. In fact, Section 2(g) of the Act of 1973 defines "development plan" as including "a zonal plan". Therefore, F unless a Zonal Plan and also a development plan is prepared, a Town Development Scheme cannoi be proposed .. The provisions of Sections 49 and 50 of the Act of 1973 categorically provide for "Development Plan" to mean "master · plan" as well as "Zonal Plan". G

42Copy pinpoint42. In the case in hand, the KVTDS has been prepared in the absence of a Zonal Plan. It is not possible to define the utilization of land under the Town Development Scheme unless the Zonal Plan formulated by the local authority describes with H sufficient particularity the details for which the broadly indicqted

p. 793 Copy page pinpoint

CHHATTISGARH [V GOPALAGOWDA, J.]

use of land in the Development Plan may be put. Respondent A No. 2- RDA is not permitted to either usurp or bypass the power vested with the local authorities for preparing town developmentscheme in the absence of zoning plan merely on the ground that the local authority did not exercise its constitutional power in preparing the zonal plan following the direction of Respondent No. 1- State Government under Section 20 of the Act of 1973. A mere glance at the Master. Plan would clearly go to show that it does not set out the detailed land use with sufficient particulars. Therefore, the framing of a Zonal Plan by local authority in laying out a detailed plan of land use with sufficient particulars is a sine qua non under the provisions of the Act.

43Copy pinpoint43. The legal contention urged on behalf of the respondents that a Town Developmen.t Scheme can be framed pursuant to the Development Plan without there being a zonal plan, is not sustainable. The learned senior counsel Mrs. Pinky Anand and Mr. Prashant Desai on behalf of the respondents relied upon the Act pari materia for the State of Gujarat where the Town PlanningAct does not contemplate a Zonal Plan, and which contemplates "DP-TP".

44Copy pinpoint44. The letter of Respondent No. 2-RDA dated 20.07.2009 addressed to Respondent No. 1- State Government seeking permission.for the Town Development F Scheme in the enhanced area itself highlights the importance of planning at Zonal level to stop illegal development. Having regard to the provisions of Sections 17, 19, 20, 21 and 49 of the Act of 1973, the relationship between the scope of Development Plan, Zoning Plan and Town Development G Scheme can be well understood and in view of the aforesaid provisions and the factual position in relation to the KVTDS, unless a Zoning Plan exists, it is not possible for the Planning Authority to ascertain as to which area is to be used for which H

p. 794 Copy page pinpoint

A purpose. A development authority under Section 38(2) of the 1973 Act cannot, in the name of planning and implementing a Town Development Scheme, usurp the power of the local authorities and define the land use under the Town Development Scheme and subsequently, seek changes in the B Master Plan to bring it in conformity with the KVTDS. In support of this contention, reliance has been placed upon by the learned senior counsel on behalf of the appellants on the judgment of this Court in Chairman, Indore Vikas Pradhikaran case mentioned supra, the relevant portion of which is quoted hereunder:

"37. 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 geogrnphical 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. xxx xxx xxx

72. 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.

H xxx xxx xxx

p. 795 Copy page pinpoint

CHHATTlSGARH [V. GOPALAGOWDA, J.]

75. lhe purpose of declaring the intent under Section A 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 pu~pose 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 0 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.

76. 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 ls 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.

77. To accept that it is open to the town development authority to declare an intention to formulate a town H

p. 796 Copy page pinpoint

A 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 B 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 c interpretation could lead it would the{l 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 D 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. E usage of the l~nd 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.

F 78. 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 G 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 H

p. 797 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOV\(DA, J]

plan such a scheme at all is required, the intention to A frame the scheme cannot be notified. xxx xxx xxx

87. An area conceived of under the Act, as noticed hereinbefore, consists of both plan area and non-plan 8 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." ·

45Copy pinpoint45. Further, the learned senior counsel on behalf of the appellants have rightly placed reliance upon the principle of C .Constitutional morality as explained by Dr. B. R. Ambedkar to the Constituent Assembly on 4th November 1948. The relevant portion of which is extracted hereunder:

"While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of· administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely. changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution."

46Copy pinpoint46. In the light of the facts and circumstances of the case, the legal contentions urged before us, the provisions of the G Act and also in the light of the legal principles already laid down by this Court, we are of the opinion that Respondent No. 2- RDA could not have formulated KVTDS-for Raipur without a Zoning Plan there in place. Accordingly, we answer this point in favour of the appellants. H

p. 798 Copy page pinpoint

A Answer to Point No. 4

47Copy pinpoint47. Section 50 (5) of the Act of 1973, read with Section 50 (6) of the Act of 1973, provides for constitution of a committee which shall determine the various aspects of a Town B Development Scheme such as its viability, cost effect etc. Section 50(6) of the Act provides that a committee constituted under section 50(5) of the Act shall consider the objections and suggestions and give hearing to any person desirous of being heard. Thereafter, the committee shall submit its report to the Town and Country Development Authority and, is required to submit its proposal on these aspects:

i. Define and demarcate areas allotted or reserved for public purpose; ii. Demarcate the reconstituted plots;

iii. Evaluate value of original plots and reconstituted plots;

E iv. Determine whether the areas marked for public purpose are wholly or partially beneficial to the residents;

v. Estimate the compensation or contribution from beneficiaries of the scheme;

vi. Evaluate increment in value of the reconstituted plot for calculating incremental value;

vii. Evaluate the reduction in value and assess compensation payable therefor;

48Copy pinpoint48. The committee, in the case, in hand, has recorded in its report only on the first four aspects and has held the last three aspects as not applicable to the scheme without assigning any valid reasons. Therefore, in providing this report, the

p. 799 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.]

committee has violated the mandatorY provision of providing A a complete report before acquiring land from landowners which often results in loss of livelihood for poor agriculturists. This aspect of loss of livelihood has been noted by this Court in the case of Bo'!du Ramaswamy mentioned supra. B

49Copy pinpoint49. The learned single judge of the High Court of Chhattisgarh, Bilaspur, in his judgment, has held that the aforesaid three aspects are not applicable in the present case . for the reason that the Respondent No. 1- State government has decided not to .seek payment of incremental cost/ C contribution cost from the land-holder on account of development of area while prescribing the size of the reconstituted plots for which respective landholders would be entitled. D

50Copy pinpoint50. The said view of the learned single Judge has been. erroneously upheld by the Division Bench of the High Court of Chhattisgarh, Bilaspur. The said view taken by both the learned single judge and Division Bench of the High Court of Chhattisgarh, Bilaspur, is contrary to the provision of the Act of E 1973, since the High Court has not noticed in arriving at the aforementioned conclusion that the committee was not adhering to the mandatory provisions with regard to development scheme. Therefore, the scheme is vitiated in law for lack of compliance with the provisions of the Act of 1973. F The manner in which the computation of increment in the value of the reconstituted plot has been arrived at, is vague.

51Copy pinpoint51. The affidav.it of RDA dated 23.11.2011 byway of its reply to the writ petitions, has taken the following stand: G

"However, finally the Committee came to the conclusion that as the scheme is to be made in participation with, the general public, therefore, neither any charge would be levied on the public under any head nor any H

p. 800 Copy page pinpoint

A compensation would be payable to any of the members of public on account of reduction of his plot size or value ... However, while finally making its recommendation the committ~e on internal page No. 114 and 115 of the Annexure categorically recommendeEI that the B provisions of sub-section (v) (vi) and (vii) of the Section 50 (6) would not be applicable on the scheme."

From the above averments of the Respondent No. 2·- RDA in its affidavit by way of reply, it is evident that it has unilaterally c decided to make the mandatory provisions of Section 50(6) (v) (vi) and (vii) of the Act of 1973, inapplicable to the scheme without providing any reason for the same. It could not have , stated so, as this aspect is no more res integra. This court has already taken the view that the provisions of Section 50 are D mandatory in nature in the case of Ahmedabad Municipal . Corpn. v. Ahmedabad Green Belt Khedut Manda/17, which will be discussed at appropriate place in this judgment.

52Copy pinpoint52. Further, there is no board resolution for the village E Dumartarai, and in any event, Board resolution of Respondent No. 2- RDA does not amount to intention to declare under Section 50 (1) to develop a town development scheme in terms of the Government Order dated 18.11.1999. The Respondent No. 2- RDA, on the other hand, is required to seek F permission from Respondent No. 1- State Government to publish the intention in the official gazette. The RDA under the aforesaid provision was required to declare its intention to the public at large.

53Copy pinpoint53. In the instant case, the Respondent No. 1- State Government granted permission to Respondent No. 2- RDA to publish its intention under Section 50(2)of the Act of 1973, on 25.1.2008 for village Dunda alone. It published its intention under the aforesaid provision for the villages of Dunda as well H "(2014) 7 sec 357

p. 801 Copy page pinpoint

;. CHHATTISGARH [V. GOPALAGOWDA, J.]

as Tikrapara pursuant to the Board Resolution by circulations A dated 12.5.2009 and 5.6.2009. Afterwards the Respondent No. 1- State Government granted permission dated 10.⁸.2009 for increasing the area of the Scheme to 2300 acres. The Board of the RDA issued another resolution by circulation dated 20.⁸.2009 for inclusion of three villages namely B Boriakhurd, Dumartarai and Devpuri. The Board Resolution is only for publication of the scheme in the gazette and the same was for KVTDS Scheme No. 5 and not KVTDS Scheme No.4. Pursuant to the Board Resolution dated 20.⁸.2009, a declaration of intention was published for amended scheme c on 4.9.2009. The board resolution is merely for publication of the scheme in the official gazette. There is no provision under the 1973 Act to issue declaration only in so far as amended portion is concerned. Thus, the inclusion of village Tikrapara D is not in accordance with the procedure prescribed under the Act and the entire process had to be commenced de nova.

54Copy pinpoint54. The learned senior counsel for the appellants have rightly pointed out the procedure of passing a resolution, by placing reliance upon the provisions of Section 289 of the E Company's Act, 1956 which specifically_ allows resolution by circulation in the following terms:

"289. Passing of resolutions by circulation. No resolution shall be deemed to have been duly passed by the Board F or by a committee thereof by circulation, unless the resolution has been circulated in draft, together with the necessary papers, if any, to all the directors, or to all the members of the committee, then in India (not being less in number than the quorum fixed for a meeting of the G Board or committee, as the case may be), and to all other directors or members at their usual address in India, and has been approved by such of the directors as are then in India, or by a majority of such of them, as are entitled to vote on the Resolution." H

p. 802 Copy page pinpoint

A Thus, since there is no declaration of intent preceding publication in the gazette, Board Resolutions which are not declared to the public in the matter prescribed under the Act of 1973, and same do not amount to declaration.

B The Act does not empower the Respondent No. 2- RDA to reconstitute plots. Even if any authority can be read into it, it has to be limited to public utilities.

55Copy pinpoint55. The provision under Section 49 of the Act of 1973 c only allows a Town Development Scheme to make provision for reconstruction of plots for the purpose of buildings, roads, drains; sewage lines and other similar amenities. It may be noted that the Maharashtra Regional and Town Planning Act, 1966 and the Gujarat Town Planning and Urban Development D Act, 1976 specifically provide for reconstituted plots and the Acts also provided the procedure to be followed for the same under the respective statutes. Section 65 (1) of the Maharashtra Act and Section 45 (1) of the Gujarat Act are in pari material, which are reproduced hereunder: E "Section 65 (1) of the Maharashtra Act: In the draft scheme, the size and shape of every reconstituted plot shall be determined, so far as may be, to render it suitable for building purposes, and where a plot is already built upon, to ensure that the buildings as far as possible comply with the provisions of the scheme as regards open spaces." Section 45 (1) of GujaratAct: In the draft scheme referred to in Section 44, the size and shape of every plot shall be determined, so far as may be, to render it suitable for building purposes and where the plot is already built upon, to ensure that the building, as far as possible, complies with the provisions of the scheme as regards open spaces" H

p. 803 Copy page pinpoint

CHHATTISGARH [V. GOPALA GOWDA, J.]

Further Section 49 (viii) of the Act of 1973 empowers A RDA to make provision for reconstitution, which reads as under: "49. Town Development Scheme-A town development scheme may make provision for any of the following 8 matters: ·

(viii) Re-constitution of plots for the purpose of buildings, road, drains, sewage lines and other similar amenities ... ," C

56Copy pinpoint56. From a careful reading of the aforesaid conclusions, it is evident that the board conferred power upon the Respondent No. 2-RDA to make provision for reconstitution and not for reconstruction per se. In any event, such power to make provision for reconstitution is limited to certain specified public purposes, which does not include general housing scheme.

57Copy pinpoint57. There .is conspicuous absence of any empowering mechanism under the Act of 1973 for the above purpose and no authority has been vested under the provision of the Act applicable to Chhattisgarh, to adjust rights of parties in the land. In view of the aforesaid provision, mere prescription or the scope of the activity in the Town Development Scheme under Section 49 of the Act will not ipso facto confer the power upon Respondent No. 2- RDA to alter rights of landowners in their properties. This unique anomaly under the Act may be contrasted with the Gujarat Act and the Maharashtra Act wherein the office of the Town Planning Officer has been. specifically created for the said purpose. G

Further, under Section 52 of the GujaratAct the town planning officer carries out the task of reconstitution of lands. The provision reads as under: H

p. 804 Copy page pinpoint

A "52(1) In a preliminary scheme, the Town Planning Officer shall:- (i) After giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or B reserved for, any public purpose, or for the purpose of the appropriate authority and the final plots; (ii) After giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in c ownership in common, the share of such persons; (iii) Provide for the total or the partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with the provisions of Section 81; D (iv) Determine a period within which works provided in the scheme shall be completed by the appropriate authority." Also, Section 81 of the Gujarat Town Planning and Urban E Development Act reads as under:

"Any right in an original plot which in the·opinion of the Town Planning Officer is capable of being transferred wholly or in part, without prejudice to the making of a town planning scheme, to a final plot shall be transferred and any right in an original plot which in the opinion of the Town Planning Officer is not capable of being so transferred shall be extinguished: Provided that an agricultural lease shall not be transferred from an original plot to final plot without the consent of all the parties to such lease."

The Maharashtra Act of 1966 confer this right on an Arbitrator appointed by the State Government. Section 72 (3) (xiii) of the H Act reads as under:

p. 805 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J]

"72 (3)in accordance with prescribed procedure, every A Arbitrator shall,-

(xiii) provide for the total or partial transfer of any right in the original plot to a final plot or provide for the execution B of any right in an original plot in accordance with the provisions contained in section 101 ;"

58Copy pinpoint58. In the light of the provisions above mentioned, it is clear that under both the town planning legislations for Gujarat C and Maharashtra States, a specific authority has been statutorily authorized to alter rights in property and to reconstitute plots, whereas no such authority has been so empowered under the Chhattisgarh Town Planning Act, 1973. Therefore, without an official amendment to the Chhattisgarh Act and without following · o the mandatory procedure, no reconstitution of land under the Town Development Scheme can take place.

59Copy pinpoint59. To further establish this point, reliance has been placed by the learned senior counsel on behalf of the appellants on the following judgment of this Court in Ahmedabad Municipal Corpn. v, Ahmedabad Green Belt Khedut Manda/ (supra), wh·erein it was held as under:

"27. The aforesaid provisions read conjointly give a clear picture that the scheme is just like the consolidation proceedings as the land, belonging to various persons, covered by the scheme first be put into a pool and then the land be allocated for different purposes and, in such a way, after having all deductions for the purpose of either by way of acquisition of land under the Land Acquisition G Act, 1894 (hereinafter referred to as "the 1894 Act") or the land taken under the provisions of Section 40(3){jj)(a) of the 1976 Act, the loss and profit of individual tenure- holder is to be calculated. After assessing the market H

p. 806 Copy page pinpoint

A value on the date of declaration of the intention to frame a scheme and the value of the property after making all these deductions, adjustments, improvements, etc. and, therefore, if a person has suffered any loss, his loss is to be made good from the funds of the scheme and if a B person has gained an amount equivalent to net gain, is to be recovered from him.

The case mentioned supra, further reads: "40. As we have explained hereinabove that the town c planning scheme provides for pooling the entire land covered by the scheme and thereafter reshuffling and reconstituting of plots, the market value of the original plots and final plots is to be assessed and the authority has to determine as to whether a landowner has suffered some injury or has gained from such process. Reconstitution of plots is permissible as provided under the scheme of the Act as is evident from cogent reading of Sections 45(2)(a), (b), (c) and Section 52(1 )(iii) in accordance with Section 81 of the 1976 Act. By reconstitution of the plots, if anybody suffers injury, the statutory provisions provide for compensation under Section 67(b) read with Section 80 of the 1976Act. By this reconstitution and readjustment of plots, there is no vesting of land in the local authority and therefore, the Act provides for payment of non-monetary compensation and such a mode has been approved by the Constitution Bench of this Court in Shanti/a/ Mangaldas, wherein this Court has held that when the scheme comes into force all rights in the original plots are extinguished, and simultaneously therewith ownership springs in the reconstituted plots. It does not predicate ownership of the plots in the local authority, and no pro~ess-actual or notional-of transfer is contemplated in that appropriation. Under clause (a) of

p. 807 Copy page pinpoint

CHHATTIS.GARH [V. GOPALAGOWDA, J.)

Section 53, vesting of land in local authority takes place only on commencement of scheme into force. The concept that lands vest in a local authority when the intention to make a scheme is notified, is against the plain intendment of the Act. Even steps taken by the State do not involve application of the doctrine of eminent domain."

60Copy pinpoint60. It is further contended by the learned senior counsel on behalf of the appellants that apart fr~m this, the allotment of reconstituted plots to the original land owners is being done in c an arbitrary and discriminatory manner and therefore the same is wholly unsustainable in law. It was further contended that the Respondent No.1-State government arbitrarily excluded and included lands in the scheme without any rational basis or explanation for initial proposal of the Town Development D Scheme on land measuring 416.93 acres and there is neither rational explanation or basis for subsequent addition of another· 1900 acres of land included pursuant to RDA's Resolution dated 20.7.2009. Barring one acre land of Jalaram Cooperative Housing Society, which was originally included E in the earlier sanctioned area of 416.93 acres, the entire land of the appellants have been affected by the enhancement of acquisition of area to about 2300 acres of land. The villages of Tikrapara and Dumartarai were not originally included in the first phase of development in the Raipur Master Plan F (Revised) 2021.

61Copy pinpoint61. The location of the land of the appellants which is also shown in the map/plan annexed to the Convenience Compilation is produced by the appellants, stating that- G

a) The total 22 acres of land of which about 11 acres. of land is of Rajendra Shankar Shukla and family of Village Dumartarai is an island, separated by distance of 1.5 kms from the main site. Thus, this H

p. 808 Copy page pinpoint

A piece of 11 acres of land is separate from the rest of land parcel being developed, and there is no reason for its inclusion except malice in law. b) Land of petitioner's Chinmay Builders and Jalaram Cooperative Housing Society of village Tikrapara B is on the fringe of their existing colonies, and is therefore, sufficiently developed. c) Land of petitioner's Chhatri Family and petitioner Vijay Rajani and family is on the main orad and is c sufficiently developed on account of proximity to the main road. d) Only a piece of land jointly owned by Vijay Rajani, Rakesh Amrani and Pradeep Prithwani admeasuring about 1 acres is in the centre of the township.

62Copy pinpoint62. It was further argued that draft Scheme was published on 20.11.2009 which included vast tracts of agricultural land as well as abadi areas. However, the final scheme published on 16.07.2010 was for 1600 acres. It is submitted by the learned senior counsel on behalf of the appellants that firstly the inclusion of 1900 acres of land was approved on 10.⁸.2009 without following the procedure and conducting the survey. But after harassing the land owners, the Respondent No. 2- RDA excluded 700 acres of land, which were as under: (a) Land notified for agricultural use under the Master Plan (Revised) 2021 G (b) Land carrying construction over them, and (c) Land of private colonizers whose layout had been · approved irrespective of whether construction has been carried out or not in the permission dated H 25.01.2008, the State Government had itself

p. 809 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.]

directed that lands with trees and construction will A not be included, and therefore, the question of having such a huge area including constructed land did not arise for its consideration. As a consequence of the above said exclusion, portions of 8 land belonging to the appellants in Civil Appeal arising out of SLP (C) No. 30942 of 2014 measuring about 11 acres was separated from the main proposed township by a distance of about 1.5 kms. Between these two chunks of land, there lies a densely populated area. Apparently, there are no means to c provide services to the separated land other than by spending· disproportionate costs on separate infrastructural faCilities such as sub-station, sewerage treatment plant, water pumping station, separate water pipeline, separate sewerage plant etc. Therefore, it is contended that there will be no adverse D implication for the proposed township if lands belonging to the appellants in the above mentioned appeal are excluded from the KVTDS.

63Copy pinpoint63. Further, the lands of other appellants namely, Vijay E Rajani and family, Jalaram Cooperative Housing Society, Bulamal Chhatri and Chinmay Developers are also on the fringe of the township and as such there is no adverse implication for the proposed township if the said land of the appellants is excluded. In support of the aforesaid reasons, F the learned senior counsel on behalf of the appellants has rightly placed reliance upon the foilowing decisions 9f this Court in Bondu Ramaswamy v. Bangalore Development Authority, (supra) wherein it"was held as under: G "134. Therefore, if a development authority having acquired a large tract of land withdraws or deletes huge chunks, the development by the development authority will resemble haphazard developments by unscrupulous private developers rather than being a planned and H

p. 810 Copy page pinpoint

A orderly development expected from a Development Authority. therefore when a large layout is being planned, the development authorities should exercise c'are and caution in deleting large number of pockets/chunks of land in the middle of the proposed layout. There is no B point in proposing a planned layout but then deleting various portions of land in the middle merely on the ground that there is a small structure of 100 sq.ft or 200 sq.ft. which may be authorized or unauthorized. Such deletions make a mockery of development. Further such c deletions/exclusions encourage corruption and favouritism and bring discontent among those who are not favourably treated.

135. The complaint by appellants is that in the proposed D Arkavathi layout, rich and powerful with "connections" and "money power" were able to get their lands, (even vacant lands) released, by showing some imaginary structure or by putting up some unauthorised structure overnight. Though we do not propose to go into motives, the concurrent finding by the learned Single Judge and Division Bench is that there are arbitrary unexplained deletions. While we may not comment on policy, it is obvious that deletion from proposed acquisition should be only in regard to areas which are already well developed in a planned manner.

136. Sporadic small unauthorised constructions in unauthorised colonies/ layouts, are not to be deleted as the very purpose of acquisition for planned development is to avoid such unauthorised development. If hardship is the reason for such deletion, the appropriate course is to give preference to the land/plot owners in making allotments and help them to resettle and not to continue the illegal and haphazard pockets merely on the ground that some temporary structure or a dilapidated structure

p. 811 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.]

existed therein. A development authority should either provide orderly development or should stay away from development. It cannot act like unscrupulous private developers//colonisers attempting development of small bits of land with only profit motive. When we refer to private developers/colonisers by way of comparison, our intention is not to deprecate all private developers/ colonisers. We are aware that several private developers/colonisers provide la_rgECwell planned authorized developments, some of which are even better than developments by development authoriti~s. What is discouraged and deprecated is small unauthorized layouts without any basic amenities. Be that as it may.

137. What do we say about a 'development', where with reference to the total extent of a village, one-third is not notified at all, and more than half is deleted from proposed acquisition of the remaining two-third and only the remaining about 20% to 30% area is acquired, that too not contiguously, but in different parcels and pockets. What can be done with such acquisition? Can it be used for orderly development? Can it avoid haphazard and irregular growth? The power of deletion and withdrawal unless exercised with responsibility and fairly and reasonably, will play havoc with orderly development, will add to haphazard and irregular growth and create discontent among sections of society who were not fortunate to have their lanas deleted:"

The above decision holds true in the present case in the light of the fact that vast amount of tracts have been deleted subsequently without the respondents assigning any reason for the same. As a. consequence, KVTDS has turned into disconnected pockets of acquired land and land deleted subsequently after acquisition. H

p. 812 Copy page pinpoint

64Copy pinpoint64. The functioning of the Committee under Section 50(5) of the Act of 1973 is dissatisfactory and required the process to be followed afresh. The committee constituted under the aforesaid Act to hear objections of the desirous parties, was a mere eye wash. The committee rejected the B objections submitted by the appellants without providing any reasons for the same and not even. providing any hearing opportunities to put forth their objections before the said Committee. Therefore, the recommengations of the Committee did not carry any weight. This action of the State Government C is vitiated in law and therefore liable to be set aside.

65Copy pinpoint65. It can be asserted from the evidence on-record produced before us that the Committee constituted under Section 50(5) oftheAct, heard objections of the land owners from 25.01.2010 to 2.6.2010. At the same time, the Respondent No. 2- RDA proposed change of land. use on 15.4.2010 and 20.5.2010 and even the lay-out plan was also prepared and approved on 26.5.2010. This shows that the hearing and consideration ofth'e land owner's objections was only a sham. The committee had pre-decided about the plan and was hearing objections of the land owners only as a formality procedure. Clearly, when the land plan was prepared and approved on 26.5.2010, the hearing of objections till F 2 .6.2010 was immaterial.

66Copy pinpoint66. The committee took decision to exclude agricultural land which was formally taken on 22.6.2010 after acceptance of the report of the Committee dated 8.6.2010. But even before this, vide letter dated 15.4.2010, CEO of the Respondent No. G 2- RDA had made it clear to the Respondent No. 1- State Government that agricultural land will be excluded. The committee constituted under Section 50(5) was headed by CEO of Respondent No. 2- RDA who hims~lf proposed inclusion of 1900 acres of land vide letter dated 20.7.2009. H

p. 813 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.]

This affects the rights of the appellants. For this reason also, they did not receive fair hearing from the Committee. The . recommendations of the committee were considered by the Board of Directors of Respondent No. 2- RDA on 21.6.20-10. While the committee was hearing the objections, there was no freezing of land use and Respondent No. 2- RDA kept on proposing change in land use. This affected the statutory rights of the land owners who were entitled to fair hearing .against the acquisition of land.

67Copy pinpoint67. lnthecaseofRaghbirSinghSehrawatv. State of C Haryana 18 , held as under: .. "40. Though it is neither possible nor desirable to make· a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collectorshould_give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons.

Further, in the case of Indore Development Authority v. Madan La/19 , it was held as under: • 10. We do not think that the DevelopmentAuthority was justified in following a short cut in this case. The procedure followed ·under the Trust Act could not be sufficient to dispense with all the requirements of Section " (2012) 1 sec 792 ·" (1990) 2 sec 334 H

p. 814 Copy page pinpoint

A 50 of the Adhiniyam. As earlier noticed that Section 50 of the Adhiniyam provides procedure for preparation and approval of scheme for development. After preparing a draft scheme, the Development Authority must invite objections and suggestions from the public. There must B be due consideration of the objections and suggestions received in the light of the Master Plan of Indore. Indeed, the public must also have an opportunity to examine the scheme and file objections in the light of the Master Plan ifthe Development Authority wants to adopt the scheme. c Since the scheme in question was not an approved scheme under the Trust Act, the Development Authority could not have dispensed with the procedure prescribed under Section 50 of the Adhiniyam." D Therefore, in the light of the facts and circumstances of the case and the legal principles laid down by this Court, we are of the opinion that reconstitution of plot for the purpose of town development scheme is permissible for public purpose only and that too by following the legal procedure of publication by the authority in gazette about its intent to acquire land. In the absence of the same, and also when .the purpose for reconstitution of land is not for public purpose, such reconstitution of land is impermissible under the Act. Therefore, we answer this point in favour of the appellants that the respondent No.2-RDA could not have reconstituted plot for any other purpose other than public purpose.

Answer to Point No. 5

68Copy pinpoint68. It has been argued by the learned senior counse:I on behalf of the appellants that taking away land located in prime ·location and giving away land anywhere as per the discretion of Respondent No. 2- RDA, thattoo, to the extent of mere 35% of the area, is constitutionally impermissible. Against this H contention raised by the learned senior counsel for the

p. 815 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.]

·appellants, the learned senior counsel for the the Respondent A No. 1- State Government as well as the High Court of Chhattisgarh, relied upon the decision of this Court in the case of State of Gujarat v. Shanti/al Mangaldas and Ors. 20 , to hold that taking away land and giving back 35% developed land in return, is in accordance with the Constitution. On this B aspect, we are inclined to rely upon the decision of this court in His Holiness Kesavananda Bharathi v. State of Kerala2' which laid down the subsequent development on the · jurisprudence of compensation and overruled the decision of Shanti/al in the process. It was held in the case of C Kesavananda Bharati v.. State of Kera/a as under: "584. The later decisions had continued to uphold the concept of "compensation" i.e. just equivalent of the value of the property acquired in spite of the amendments o made in 1955. In State ofGujaratv. Shanti/al Mangaldas and Others the decision in Metal Corporation of India, was overruled which itself was virtually overruled by R. C. Cooper v. Union of India. According to the Advocate- General of Maharashtr?, if Shanti/al Mangaldas case, had not been overruled by R. C. CooperlJ. Union of India,· .there would have been no necessity of amending Article 31(2).

1744. In the Bank Nationalisation case, the majority decision virtually overruled .the decision in Gujarat v. Shanti/al. The majority was of the view that even after the Fourth Amendment 'compensation' meant "the equivalent in terms of money of the property compulsorily acquired" according to "relevant principles" which G . principles must be appropriate to the determination or compensation for the particular class of property sought to be acquired." 20 AIR 1969 SC 634 H " (1973) 4sec 22s

p. 816 Copy page pinpoint

A Since compensation for acquisition of land need to be reasonable and adequate in the interest of justice, we rely upon the decision of Kesavananda Bharathi case (supra) to hold that returning 35% of land in lieu of acquisition is constitutionally impermissible. This is also because the 'development' which occurs due to the implementation of the Town Development Scheme accrues the benefit to everyone. In the same way, the appellants whose land has been acquired and proposed to be developed, would have gained from the development, if at all, as a member of the community gaining from the town development scheme and not in his individual capacity. When the compensation for land acquisition is determined, the price of the land on the date of the declaration of intention of acquisition is taken into consideration and not subsequent development after acquisition since the development is not connected to acquisition. In the same manner, if the land is reconstituted in plots for distribution to the Economically Weaker Sections of the community or other public purposes, the same cannot be done by arbitrarily depriving the land owners of their Constitutional rights guaranteed under Article 300 A of the Constitution of India. They are entitled for the compensation fFOm the State Government. The State Government on the other hand, cannot involuntarily acquire land and impose developmental charges in the same breath. F

69Copy pinpoint69. We come to this conclusion further on the ground that 35% figure was_ arrived at by Respondent No. 2- RDA while allocating reconstituted land to the appellants, without any valid form of calculation arrived at by the respondents. This action of the respondents is arbitrary also because the percentage of reconstituted land to be returned to the land owners vary from 35% to 58% for large plot holders and small plot holders. Also, from the letter dated 20.7.2009, it is evident that Respondent No. 2- RDA had already taken a decision that not more than 40% of land will be returned to the land owners.

p. 817 Copy page pinpoint

CHHATTISGARH [V. GOPALAGOWDA, J.)

This decision is arrived at without taking into consideration A the value of each portion of land on the basis of their geographical locations.

70Copy pinpoint70. It is further submitted by the iearned senior counsel on behalf of the appellants that taking land under "Development B Contribution" to the extent of 65% is not contemplated under Section 50(6) of the Act. Section 50(6)(vi) of the Act of 1973 reads as under: " ...... (vi)evaluate.the increment in the value of each reconstituted plot and assess the development contribution leviable on each plot holder: Provided that the contribution shall not exceed half the accrued increment in value."

71Copy pinpoint71. Even under Section 40(3)(jj)(a) of the GujaratAct, the maximum permissible contribution of land by land owner cannot exceed 50%. Therefore, in the absence of any reasonable procedure arrived at by the Respondents, taking 65% of the area of the plot as development contribution is wholly unfair and arbitrary, and is also impermissible as per Section 50 E (6}(vi) of the 1973 Act. We hold that the respondents were not justified in returning only 35% of reconstituted plots and retaining 65% for different purposes mentioned b.y them.

Answer to Point No. 6 F

72Copy pinpoint72. The learned senior counsel on behalf of the appellants urged that the Respondent No. 2- RDA's application for Environmental lmpactAssessment clearance dated 17.6.2010, was prior to the date of approval of KVTDS by the Board of G RDA, the same being accorded on 22.6.2010 and published on 16. 7.2010 ..Therefore, the application of the Respondent No.2- RDA was initially for EIA clearance for 2300 acres, whereas the final scheme was only for 1600 acres of land. As per the condition (v) of the General Condition of the H

p. 818 Copy page pinpoint

A Environmental Clearance (EC) dated 25.1.2011, if the RDA has changed the scope of the i:iroject, it has to take a fresh EC. The EC was sought for considerably more than the area . for which the final scheme was notified i.e. 1600 acres.

73Copy pinpoint73. As per the MoEF, EIA notification dated 14.9.2006 was issued by which Townships and Area Development Projects are put in Category-B1. The KVTDS Scheme No.- 04 falls in this category. As per general conditions of 14.9.2006 notification, projects of "B1'' category will be considered as C projects. of category "A" if the same falls in critically polluted areas. Then the Central Government is the .competent authority to grant clearance to such projects.

74Copy pinpoint74. Further, MoEF, issued a circular dated 25.⁸.2009, D which has noted that the Central Pollution Control Board (CPCB) had identified critically polluted areas. The Expert Appraisal Committee (EAC) is appraising proposal of EC to the areas. Thereafter the concerned State Pollution Control Board will send its representative with its comments. The E circular pertained to the procedure of grant of EC to development projects in Critically Polluted Areas.

75Copy pinpoint75. Th·e MoEF issued O.M. dated 13.1.2010 listing out 'critically polluted' and 'severely polluted' areas. Raipur falls in F severely polluted area (S. No. 63 with CEPl-65.45). Para 4.1.1 and 4.1.2 ofthe said O.M. puts a complete prohibition on grant of environmental clearance to projects falling in 'critically polluted areas' for 8 months and the said moratorium was further extended by letter dated 31.10.2010. Para 4.2 of the · G said O.M provides thatthe procedure for grant of environmental clearance to development projects in 'severely polluted' areas will be as per circular dated 25.⁸.2009, i.e. for critically polluted areas. Therefore, the effect of O.M. referred to supra is that that the EC to the said projects will have to be given by the H Central Government.

p. 819 Copy page pinpoint

CHHATTISGARH [V GOPALAGOWDA, J.)

76Copy pinpoint76. The Respondent No. 2-RDA submitted its application A on 17 .6.201 O for EIA approval for 2300 acres of township. On 25.1.2011, EC clearance/EIA approval was granted by the Stat~ Level Environment lmpactAssessmentAuthority (SEIAA) to Respondent No.2-RDA which is not the authority to give such clearance as per O.M dated 13.1.201 O since the same B .. has to be granted by the MoEF

77Copy pinpoint77. The MoEF in its affidavit filed before the High Court in Writ Petition (c) No.6040 of 2011, has stated that9eneral conditions of EIA Notification dated 14.9.2006 were made C inapplicable on the projects in item 8(b) vide MoEF O.M. dated 24.5.2011. The High Court has relied on the aforesaid affidavit and dismissed the contention of the appellants with regard to the EC issue, thereby it has erred in not appreciating the said · O.M. issued after SEIAA had given EC to KVTDS-04. As on D 25.1.2011, the general conditions of EIA notification dated 14.9.2006 were applicable to category 'B' projects and Central Government was the competent authority to grant EC to KVTDS-Scheme No. 04. ~ E

78Copy pinpoint78. Even assuming that the EIA clearance granted by the SEIAA to RDA is valid, the RDA has deviated mandatory conditions as prescribed under the EC dated 25.1.2011. In the EC certificate, there is a specific condition that 'the project proponent shall not deviate from the ·/and use proposals in F the scheme area as provided under the said master plan'. On 31.1.2011, the respondent no. 1- The State Government ·issued circular with regard to change in land use from agricultural to residential purposes. The land use in the concerned khasras was already notified as 'residential' under. G . the Master Plan. The notification dated 4.3.2011 was published in the official gazette of the State government with regard to change of the land use of khasras from Agricultural to Residential purposes in the villages Dunda, Devpur and H

p. 820 Copy page pinpoint

A Dumartarai and also from Educational to Residential area in village Tikrapara.

79Copy pinpoint79. As per condition (ii) in the aforesaid notification, 185 hectares of land has to be maintained. The land use approved B by the Board on 22.6.2010 only provides for 129.42 ~ectares of land for green zone.

80Copy pinpoint80. On 25.1.2011, condition (v) of the General Conditions, stipulated that if the scope .of a project is changed, c fresh permission should be sought from the SEIAA. Scope of KVTDS-04 was changed as hereunder:

* On 17.6.2010, i.e. the date of application for EIA, RDA sought clearance for 2300 acres/847.84 hectares but finally the scheme was published on D 16.7.2010 for 1600 acres.

* 4.3.2011: change in land use notified on 31.1.201·1 published in official gazette

E * 17.⁸.2011: In RDA Board Meeting, layout plan was amended in view of G.O. dated 25.2.2011.

This resulted in change in scope of the project. Thus in view of the specific condition (ii) of the Environmental Clearance dated F 25.1.2011, fresh EC should have been sought and obtained by the RDA but the same has not been obtained by it.

81Copy pinpoint81. Section 50(8) of the Act cannot be made retrospectively applicable. In the absence of vesting of land .G with the RDA, layout is not complete and no allotment can be done. The aforesaid provision of the Act was inserted. by Ordinance dated 16.6.2010. Therefore, the same cannot be made applicable retrospectively to the Scheme as it was sanctioned by the State Government on 25 .1 .2008 and H 10.⁸.2009.

p. 821 Copy page pinpoint

CHHATTISGARH [V GOPALAGOWDA, J,]

The Scheme was finalised on 26.5.2010, by which date, no A land had been acquired by Respondent No. 2- RDA nor any piece of land vested in it. Plots are being earmarked only on paper and such 'on paper' allotment of plots have been done by Respondent No. 2- RDA. Therefore, we are of the opinion that due to the change in the scope of the project, Respondent B No. 2- RDA was required to seek sanction for the project from the Central Government. The same has not been done. Therefore, the KVTDS scheme has also failed to obtain the environmental clearance requirement which is the mandatory requirement in law for initiating any project by the RDA. A faulty C town development scheme prepared through incompetent authorities with blatant violation of legal and environmental procedure cannot be the reason for deprivation of constitutional rights of the appellants. D

82Copy pinpoint82. Since we answered all the points framed in these cases in favour of the appellants, we allow these appeals by. setting aside the impugned judgments and orders passed by the High Court of Chhattisgarh at Bilaspur in writ appeals and writ petitions of the appellants and further allow the prayer of E the appellants by quashing the acquisition of their land of the villages which were included subsequently in the KVTDS in their respective writ petitions. The appeals are allowed. No costs. F Devika Gujral Appeals allowed.