Ahmedabad Municipal Corporation & Anr. V. Ahmedabad Green Belt Khedut Mandal & Ors in India

Ahmedabad Municipal Corporation & Anr. V. Ahmedabad Green Belt Khedut Mandal & Ors [2014] Insc 257 (9 May 2014)

Court Judgment Information

• Year: 2014
• Date: 9 May 2014
• Court: Supreme Court of India
• INSC: [2014] INSC 257

Text of the Court Opinion

(Refortable) IN THE SUPREME COURT OF INDIA

Civil Appelate Jurisdiction

CIVIL APPEAL NOs.1542-44 OF 2001 Ahmedabad Municipal Corporation & Anr. (Appelant)s Versus Ahmedabad Green Belt Khedut Mandal & Ors. .Respondent WITH

CIVIL APPEAL NOs.1545-50 OF 2001 State of Gujarat (Appelant) Versus Ahmedabad Green Belt Khedut Mandal & Ors. .Respondents WITH

CIVIL APPEAL NOs.1551-56 OF 2001 Ahmedabad Urban Development Authority (Appelant) Versus Ahmedabad Green Belt Khedut Mandal & Ors. .Respondents WITH

CIVIL APPEAL No. 1864 OF 2014 Vadodara Sheheri Sankulan Khedut Mandal & Ors. .Petitioners Versus Vadodara Urban Development Authority & Anr. .Respondents WITH

TRANSFERRED CASE (C) NOS. 12-13 OF 2010 Bhikhubhai Vitthalbhai Patel & Ors. etc.

.Petitioners Versus The State of Gujarat & Ors. .Respondents

Dr. B.S. CHAUHAN, J.

1. Civil Appeal Nos.1542-44 of 2001 have been preferred challenging the impugned judgment and order dated 24.11.2000, passed in Special Civil Application Nos.1189, 4494 and 4659 of 1998 by the High Court of Gujarat at Ahmedabad, wherein the Writ Petition filed by the respondents has been partly allowed holding that Section 40(3)(jj)(a) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the ‘Act 1976’) would be operative for the land other than the land covered by Section 20(2) of the Act 1976, though upheld the validity of Section 40(3)(jj) of the Act 1976. Civil Appeal Nos.1545-50 of 2001 have been preferred by the State of Gujarat against the same judgment raising the grievance to the same extent.

Civil Appeal Nos.1551-56 of 2001 have been filed by the Ahmedabad Urban Development Authority (hereinafter referred to as `AUDA’) against the same judgment passed in same cases alongwith Special Civil Application Nos.4859, 5934, 7476 of 1998 and 4271 of 2000. Civil Appeal No. 1864 of 2014 has been filed against the impugned judgment and order dated 9.10.2009 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.10912 of 2009, wherein the matter stood disposed of in terms of the subject matter in appeals referred to above.

In Transferred Case (C) Nos.12-13 of 2010, Writ Petition Nos.2879 and 2880 of 2009 had been filed by the tenure holders/ petitioners before the High Court of Gujarat and as the same factual and legal issues are involved therein, the petitions stood transferred to this court.

2. As similar factual and legal issues are involved in all the cases for convenience T.P. (C) Nos. 12-13 of 2010 and Civil Appeal Nos. 1542-44 of 2001 are taken to be the leading cases.

All these matters relate to the validity and issues of interpretation of Section 40(3)(jj) of the Act 1976 and application of certain statutory provisions of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as the ‘Rules 1979’).

The basic question that has been raised on behalf of the tenure holders (Association of land owners) is that whether the provisions contained in Sections 40(3)(jj) of the Act 1976 are ultra-vires of Articles 14, 19 and 300-A of the Constitution of India, 1950 (hereinafter referred to as the ‘Constitution’) and have also challenged the action on the part of the Municipal Corporations (Ahmedabad and Surat) for declaring the intention to frame town planning schemes by issuing notifications, and further to hold that the action of the Municipal Corporations to take away land of the tenure-holders to the extent of 50% without paying any compensation as ultra-vires and further challenged the respective resolutions of the State Government in this regard.

The main contention of the respondents before the High Court was that by way of the impugned legislation, the appellants have designed a circuitous method to acquire land without paying any amount of compensation. The ancillary ground urged is that the land which was not acquired on payment of compensation under Section 20 of the Act 1976 cannot again be acquired indirectly and without payment of compensation by introducing the impugned legislation enabling Authority to prepare a town planning scheme and reserve the land to the extent of specified percentage for public purposes like roads, parks, play grounds, gardens and open spaces. Further, as per Section 40(3)(jj)(a)(iv) of the Act, 1976 the sale of land by the Appropriate Authority for raising money for the purpose of providing infrastructural facilities is beyond legislative competence being outside the purview of Entry 18 of List-II and Entry 20 of the concurrent list contained in 7th Schedule to the Constitution.

Moreover, compensation payable under Section 82 of the Act, 1976 in respect of property or right injuriously affected by the scheme, on the basis of market value calculated on the date of issue of intention to frame a scheme, is not an adequate compensation. Further, it was not justified under the town planning scheme or the urban development to permit acquisition of certain percentage of properties of citizens for its disposal in the hands of public authorities for the purpose of raising its fund, even to be used for further development. Under the Act 1976, Section 40(3)(j) as it originally stood, provided for reserving only 10 per cent in the town planning scheme for providing housing accommodation to the members of the weaker sections.

Therefore, the amendment by which the said area has been increased from 10% to 15% is not only unwarranted but also illegal.

3. Facts and circumstances giving rise to these matters are as under:

A. In 1963, Ahmedabad Municipal Corporation (hereinafter referred to as the ‘AMC’) prepared and submitted a development plan under the Bombay Town Planning Act, 1964 (hereinafter referred to as “Bombay Act”) whereby the lands of the respondents known as the ‘green belt’ were kept for open space and recreation. On 21.8.1965, the State Government sanctioned the development plan which came into force on 1.10.1965. B. AMC prepared its revised development plan and published it on 15.1.1976 whereby lands of the respondents were reserved for “public housing”.

C. The Bombay Act was replaced by the Act 1976 under which AUDA was alone competent to draft development plan.

D. The State Government sanctioned the development plan on 2.11.1987 which came into force on 3.12.1987 whereby the area known as ‘green belt’ was reserved for “public housing for different government organizations”.

E. The AUDA prepared draft revised development plan which was published on 29.11.1997. The land reserved for “public housing for different government organizations” was de-reserved and put under the category as “restricted residential utility services and other uses zones”.

F. The AUDA in exercise of the powers under Section 21 of the Act 1976 came out with a draft revised development plan in the year 1998. G. The respondents herein filed a Writ Petition before the Gujarat High Court challenging the draft revised development plan and for direction to the appellants herein to acquire their lands as per the plan of 1987 within a period of 6 months failing which the plan would lapse.

H. The Act 1976 was amended on 1.5.1999 and Section 40(3)(jj) was inserted. The writ petition was amended and the vires of Sections 12 and 40(3)(jj) of the Act 1976 were also challenged.

I. The AUDA vide its resolution dated 5.5.1999 approved the proposed revised development plan. Declarations were made in the year 2000 for making town planning schemes covering “restricted residential utility services and other uses zones”.

J. The writ petition was partly allowed by the High Court vide impugned judgment and order dated 24.11.2000. Hence, these appeals.

4. We have heard S/Shri C.A. Sundaram, Shirish H. Sanjanwala, Suresh Shelat, Huzefa Ahmadi, learned senior counsel for the tenure holders or association of farmers and S/Shri Harish N. Salve, T.R.

Andhyarujina, learned senior counsel and Preetesh Kapur, learned counsel for the State and statutory authorities.

5. All the submissions advanced by the counsel for the respective parties are the same which had been agitated before the High Court and reference thereof has already been made. Learned counsel appearing for the tenure-holders have submitted that the judgment of the High Court as far as the validity of the statutory provision is concerned, does not require any interference whatsoever but earmarking of the land to the extent of 50% without paying any compensation amounts to expropriation and in all circumstances percentage fixed by the statutory provisions is excessive.

6. On the contrary, learned counsel appearing for the state and statutory authorities have submitted that the judgments impugned have made the scheme unworkable as one tenure holder may get all infrastructure facilities while the adjacent neighbour may not get any facility at all. The area which can be taken away by the authority for sale to the extent of 15% relates to the total area covered by the scheme and not from each and every plot.

7. In order to properly understand the dispute herein, reference has to be made to various provisions of the Act 1976. The Preamble of the Act 1976 indicates that the purpose of the legislation is to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat.

Section 12 of the Act 1976 provides for proposals and reservations to be made in the development plan for the approval of the State Government.

8. Clause (x) of Section 2 of the Act 1976 defines “development plan” while clause (xxvi) thereof defines “scheme”.

Section 9 of the Act 1976 provides that the Development Authority shall prepare and submit the development plan to the State Government for the whole or any part of the development area in accordance with the provisions of this Act. Section 10 thereof requires that a copy of draft development plan is to be kept open for public inspection.

Section 12 provides for the contents of draft development plan generally providing the manner in which the use of land in the area covered by it shall be regulated and also indicating the manner in which the development therein shall be carried out. In particular, it shall provide, so far as may be necessary, proposal for designating the use of the land for residential, industrial, commercial, agricultural and recreational purposes; for the reservation of land for public purposes, such as schools, college and other educational institutions, medical and public health institutions; proposals for designation of areas for zoological gardens, green belts, natural reserves and sanctuaries; transport and communications, such as roads, highways, parkways, railways, waterways, canals and airport, including their extension and development; proposals for water supply, drainage, sewage disposal, other public utility amenities and service including supply of electricity and gas; reservation of land for community facilities and services, etc.

Section 20 of the Act reads as under:

“?(1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), Clause (k), clause (n) or clause (0) of sub-section (2) of section 12, may acquire the land either by agreement or under the provisions of the land Acquisition Act, 1894. (2) If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act,1894 (I of 1894), are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisitions, the designation of the land as aforesaid shall be deemed to have lapsed”.

Section 40(3) (j) & (jj)(a) of the Act reads as under:

“(j) the reservation of land to the extent of ten percent; or such percentage as near thereto as possible of the total area covered under the scheme for the purpose of providing housing accommodation to the members of socially and economically backward classes of people.

(jj) (a) the allotment of land from the total area covered under the scheme, to the extent of:

(i) Fifteen percent for roads;

(ii) Five percent for parks, playgrounds, garden and open space (iii) Five percent for social infrastructure such as schools, dispensary, fire brigade, public utility place as earmarked in the Draft Town Planning Scheme.

(iv) Fifteen percent for sale by appropriate Authority for residential, commercial or industrial use depending upon the nature of development.

Provided that the percentage of the allotment of land specified in paragraphs (i) to (iii) may be altered depending upon the nature of development and for the reasons to be recorded in writing;

(b) the proceeds from the Sale of land referred to in para (iv) of sub-clause (a) shall be used for the purpose of providing infrastructural facilities in the area covered under the scheme.

(c) The land allotted for the purposes referred to in paragraphs (ii) and (iii) of sub-clause (a) shall not be changed by variation of schemes for the purpose other than public purpose.” Section 48 of the Act 1976 defines the power of the State Government to sanction draft scheme. Further, Section 48-A reads as under:

“(1) Where a draft scheme has been sanctioned by the State Government under sub-section (2) of section 48, (hereinafter in this section, referred to as ‘the sanctioned draft scheme’), all lands required by the appropriate authority for the purposes specified in clause (c), (f), (g), or (h) of sub-section (3) of section 40 shall vest absolutely in the appropriate authority free from all encumbrances.

(2) Nothing in sub-section (1) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section.” Section 77 of the Act 1976 deals with cost of scheme, which also includes all sums payable as compensation for land reserved or designated for any public purpose or for the purposes of appropriate authority which is solely beneficial to the owners of the land or residents within the area of the scheme and also includes portion of the sums payable as compensation for land reserved or designated for any public purpose. It also includes legal expenses incurred by the appropriate authority in making and in the execution of the scheme.

Clause (f) thereof reads as under:

(f) any amount by which the total amount of the values of the original plots exceeds the total amount of the values of the plots included in the final scheme, each of such plots being estimated at its market value at the date of the declaration of intention to make a scheme, with all the buildings and works thereon at the said date and without reference to improvements contemplated in the scheme other than improvements due to alteration of its boundaries.

Clause (2) of Section 77 reads:

(2) If in any case the total amount of the values of the plots included in the final scheme exceeds the total amount of the values of the original plots, each of such plots being estimated in the manner provided in clause (f) of sub-section (1), then the amount of such excess shall be deducted in arriving at the costs of the scheme as defined in sub-section (1).

Section 79 of the Act 1976 provides for contribution towards costs of scheme.

Section 82 of the Act 1976 reads as under:

Compensation in respect of property or right injuriously affected by scheme.

The owner of any property or right which is injuriously affected by the making of a town planning scheme shall, if he makes a claim before the Town Planning Officer within the prescribed time, be entitled to be compensated in respect thereof by the appropriate authority or by any person benefited or partly by the appropriate authority and partly by such person as the Town Planning Officer may in each case determine:

Provided that the value of such property or rights shall be deemed to be its market value at the date of the declaration of intention to make a scheme or the date of the notification issued by the State Government under sub-section (1) of section 43 without reference to improvements contemplated in the scheme, as the case may be.

Section 84 thereof deals with the cases in which amount payable to owners exceeds amount due from him. As per the provisions of Section 84, if the owner of an original plot is not provided with a plot in the preliminary scheme or if the contribution to be levied from him under Section 79 is less than the total amount to be deducted therefrom, the net amount of his loss, shall be payable to him.

Section 85 of the Act 1976 deals with the cases in which the value of the developed plot is less than the amount payable by the owners. In case the amount which would be due to the appropriate authority under the Act from the owner of a plot to be included in the final scheme exceeds the value of such plot estimated on the assumption that till scheme has been completed, the owner of such plot has to make payment to authority of the amount of such excess within the prescribed period.

Sub-Section (2) of Section 85 provides that on meeting certain legal requirements, the plot included in the final scheme “shall vest absolutely in the appropriate authority free from all encumbrances but subject to the provisions of the Act”.

9. Rule 22 of the Rules 1979 reads as:

(1) The compensation payable under section 45 shall be difference between the value of the property (inclusive of structure) on the basis of the existing use and that on the basis of permitted use both values being determined as on the date of declaration of intention to prepare the scheme.

(2) In making the valuation on the basis of permitted use, allowance shall be made for the expenses that may have to be incurred in so converting the existing structures as to make them suitable for permitted use.

(3) In case provision is made for continuance of the existing use for a number of years taking into consideration the future life of the structure the compensation payable shall be limited to present value of the standing structure less value of materials at the end of such period.

(4) X X X

10. Form H attached to the Rules 1979 is a Form to be filled by the Town Planning Officer while preparing the draft planning scheme and it clearly makes it evident that “any person who is injuriously affected by the above town planning scheme, is entitled to claim the damages in accordance with Section 82 of the Act 1976”.

11. Form K attached to the said Rules 1979 is also to be filled up and sent by the Town Planning Officer while preparing the final draft planning scheme as required under Section 52(3) and it puts him under an obligation to determine and record as under:

“(i) The compensation payable to you under Section 80 (ii) Amount payable by you under Section 80 (iii) Estimated amount of the increment under Section 78 (iv) Amount of incremental contribution under Section 79 (v) The compensation under Section 82 (vi) Net amount of contribution (vii) Net amount payable to you”

Continue reading this Sentence: