high court of chhattisgarh, bilaspurcghighcourt.nic.in/afr/courtjudgementandafr/2014/june/wa...high...

HIGH COURT OF CHHATTISGARH, BILASPUR

Coram: Hon’ble Shri Sunil Kumar Sinha &Hon’ble Shri Inder Singh Uboweja, J J.

Writ Appeal No. 379 of 2013

APPELLANT Bulamal Chhatri, aged about 88years, S/o Late Shri RochaldasChhatri, R/o Shri Ram Chowk,Tikrapara, Tahsil & DistrictRaipur (C.G.)

Versus

RESPONDENTS 1 State of Chhattisgarh

Through: Principal Secretary,Department of Housing andEnvironment Mantralaya, D.K.S.Bhawan Raipur (C.G.)

2 Raipur Development AuthorityThrough its Chief ExecutiveOfficer, Raipur (C.G.)

3 Director, Town & CountryPlanning, State of Chhattisgarh,Raipur (C.G.)

4 Union of IndiaThrough: Ministry ofEnvironment and ForestParyavaran Bhavan, C.G.O.,Complex Lodhi Road New Delhi-110 003


APPELLANTS 1 Smt. Jayvanti Chhatri, aged about53 years, W/o Shri Laxman DasChhatri, R/o Shri Ram Chowk,Tikrapara, Tahsil & DistrictRaipur (C.G.)

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

2 Smt. Sarda Devi Chhatri, agedabout 60 years, W/o RameshKumar Chhatri, R/o Shri RamChowk, Tikrapara, Tahsil &District, Raipur (C.G.)

3 Bulamal Chhatri, Aged about 88years, S/o Late Shri RochaldasChhatri, R/o Shri Ram Chowk,Tikrapara, Tahsil & DistrictRaipur (C.G.)

Versus







APPELLANT Hemant Chhatri, aged about 34years, S/o Shri Laxaman DasChhatri, R/o Shri Ram Chowk,Tikrapara, Tahsil & DistrictRaipur (C.G.)

Versus

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013







APPELLANTS 1 Chinmay Builders PrivateLimited, Through- Director,Chinmay Davara, S/o ShriPrakash Davara, A/a 28 years,R/o 8, Puspak Apartment,Chhota Para, P.S. Raipur, DistrictRaipur (C.G.)

2 Jalaram Cooperative HousingSociety Limited, Through:President Narendra Davara, S/oShri Maganlal Davara, Agedabout 55 years, Raipur, P.S.Raipur (C.G.)

Versus


Through: Housing andEnvironment Department,Mantralaya, D.K.S. Bhawan

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

Raipur (C.G.)

2 The Secretary, Law andLegislative Affairs Department,Mantralaya, D.K.S. Bhawan,Raipur (C.G.)

3 Raipur Development Authority,Shastri Chowk, Raipur, Throughits Chairman, Raipur (C.G.)

4 The Town and CountryDevelopment Authority, Raipur(C.G.) Through its Chairman,Raipur (C.G.)

5 Shashikant Mirani S/o Late ShriJamnadas Mirani, A/a 54 years,R/o Shanker Niwas, Near ChowkTower Raipur (C.G.)


APPELLANTS 1 Vijay Rajani S/o Late Shri D.M.Rajani, Aged about 47 years, R/oLakhenagar, Raipur, P.S. SundarNagar, Post Raipur, DistrictRaipur (C.G.)

2 Smt. Anita Rajani, Aged about 43years, W/o Shri Vijay Rajani, R/oLakhenagar, Raipur, P.S. SundarNagar, Post Raipur, DistrictRaipur (C.G.)

3 Pradeep Prithwani, S/o JotumalPrithwani, Aged about 36 years,R/o Lakhenagar, Raipur, P.S.Sundar Nagar, Post Raipur,District Raipur (C.G.)

4 Rakesh Amrani, S/o SewakramAmrani, Aged about 37 years,R/o Katoratalab, Post & P.S.Katoratalab, Raipur (C.G.)

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

Versus


Through: The Secretary,Department of Housing andEnvironment Mantralaya, D.K.S.Bhawan, Post & P.S. CityKotwali, Raipur (C.G.)

2 Raipur Development AuthorityThrough The Chief ExecutiveOfficer, Post & P.S. Raipur (C.G.)

3 Director, Town & CountryPlanning, State of Chhattisgarh,Post & P.S. Raipur (C.G.)

And


APPELLANTS 1 Rajendra Shankar Shukla, Son oflate Shri Ramavtar Shukla, Agedabout 68 years, R/o 23/56,Malviya Road, Post & P.S. CityKotwali, Raipur (C.G.)

2 Ravi Shankar Shukla, Son of lateShri Chandradutt Shukla, Agedabout 58 years, R/o 23/56Malviya Road, Post & P.S. CityKotwali, Raipur (C.G.)

3 Dr. Ranjana Pandey, Wife of ShriVivek Pandey, Aged about 43years, R/o Tirupati Apartments,Pachpedi Naka, Post & P.S.Pachpedi Naka, Raipur (C.G.)

Versus

RESPONDENTS 1 State of Chhattisgarh, Through

The Principal Secretary,Department of Housing andEnvironment, Government of

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

Chhattisgarh, Mantralaya, D.K.S.Bhawan, Post & P.S. Gol Bazar,Raipur (C.G.)

2 Raipur Development Authority,Through its Chief ExecutiveOfficer, Post & P.S. City Kotwali,Raipur (C.G.)

3 Director, Town & CountryPlanning, Government ofChhattisgarh, Post & P.S. CityKotwali, Raipur (C.G.)

4 Collector, District Raipur, Post &P.S. Gol Bazar, Raipur (C.G.)

5 Gram Panchayat, Devpuri,Through Sarpanch, (NowCommissioner, MunicipalCorporation, Raipur), Post & P.S.Civil Lines, Tahsil & DistrictRaipur (C.G.)

6 Gram Panchayat, Dunda,Through Sarpanch (NowCommissioner, MunicipalCorporation, Raipur), Post & P.S.Civil Lines, Tahsil & DistrictRaipur (C.G.)

7 Gram Panchayat, Boriyakhurd,Through Sarpanch (NowCommissioner, MunicipalCorporation, Raipur), Post & P.S.Civil Lines, Tahsil & DistrictRaipur (C.G.)

8 Gram Panchayat, Dumartarai,Through: Sarpanch, (NowCommissioner, MunicipalCorporation, Raipur), Post & P.S.Civil Lines, Tahsil & DistrictRaipur (C.G.)

9 Raipur Municipal Corporation,Through The Commissioner, JaiStambh Chowk, Post & P.S. CivilLines Raipur (C.G.)

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

WRIT APPEALS UNDER SECTION 2(1) OF THE CHHATTISGARHHIGH COURT (APPEAL TO DIVISION BENCH) ACT, 2006

-------------------------------------------------------------------------------------------Appearance:

Mr. N.K. Vyas, Advocate for the appellants in W.A. Nos.379/2013; 380/2013 & 381/2013

Mr. Sankalp Kochar, Advocate for the appellants in W.A. No.382/2013.

Mr. Varun Sharma, Advocate for the appellants in W.A. No.389/2013.

Mr. B.P. Sharma and Mr. Rohit Shukla, Advocates for theappellants in W.A. No.393/2013.

Mr. Prashant Desai, Senior Advocate with Mr. Rutul Desai,Advocate for the State.

Ms. Pinki Anand, Senior Advocate with Mr. Rajesh Ranjanand Mr. Sumesh Bajaj, Advocates for Raipur DevelopmentAuthority.

Mr. Vivek Shrivastava and Mr. H.S. Ahluwalia, Advocates forthe Union of India.

Mr. H.B. Agrawal, Senior Advocate with Ms. Meera Jaiswal,Mr. Pankaj Agrawal, Ms. Preeti Yadav & Ms. IturaniMukherjee, Advocates for Raipur Municipal Corporation.

-------------------------------------------------------------------------------------------JUDGMENT (16.06.2014)

Following judgment of the Court was delivered by

SUNIL KUMAR SINHA, J.

(1) These appeals are directed against a common judgment dated

15.04.2013 passed in a batch of writ petitions namely- W.P.(C) No.

6280 of 2010 and other connected matters, in all 23 writ petitions,

including the writ petitions filed by the appellants herein. By the

impugned judgment, all the writ petitions, filed by the appellants

and other petitioners, challenging the validity of Kamal Vihar Town

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

Development Scheme No. 4 (Scheme/TDS) on various grounds,

have been dismissed by the Writ Court.

(2) The facts, briefly stated, are as under:-

2.1 Raipur Development Authority (RDA) has been duly

established u/S 38 (1) of the M.P. (C.G.) Nagar Thatha Gram

Nivesh Adhiniyam, 1973 (Adhiniyam/Adhiniyam 1973/Act,

1973). The above Town Development Scheme (TDS) has been

planned by the RDA discharging its functions under Sub-

section (2) of Section 38. It covers five villages namely- Dunda,

Boriya Khurd, Tikrapara, Deopuri and Dumartarai.

2.2. The said scheme has a total project area of 647.84 Hect.,

out of which the area available for development is 610.46

Hect., in which 482.29 Hect. is private land and 128.17 Hect. is

government land. The position of the land(s) in question

would be clear from the following table which we mark as

Table-I:

Table-I

PARTICULARS OF TDS-4 (KAMAL VIHAR)

S.No. PARTICULARS AREA1 Total Project Area 647.84 Hect.2 Land Area Available for Development 610.46 Hect.3 Total Private Land 482.29 Hect.4 Total Government Land 128.17 Hect.5 No. of Land Owners 4969 482.29 Hect.6 LAND CONFIRMATION 4302 440.51 Hect.7 AGREEMENT FOR LAND ISSUED

FROM PLANNING SECTION3904 398.77 Hect.

8 MONEY CONFIRMATION 29 1.42 Hect.9 Money Received against land 4 0.148 Hect.10 CLA AWARD 543 28.17 Hect.11 CLA (Award awaited) 95 16.71 Hect.12 LAND TRANSFERRED TO RDA

(Through Agreements)2553 167.52 Hect.

13 LAND UNDER LITIGATION INHIGH COURT IN APPEALS

6 12.52 Hect.

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

2.3 According to the development plan, in the above area of

647.84 Hect. further areas have been marked for recreational

land, roads and lanes and other miscellaneous infrastructure

like, educational, hygienic and various public purpose

amenities which would be clear from the following table

which we mark as Table-II:

Table-II

Area Analysis of TDS-4 (Kamal Vihar)

S.No. PARTICULARS AREA1. Total available Scheme Area under TDS-4 647.84 Hect.

2. Area under Recreational land use(a) City Park(b) Regional Park(c) Water Bodies

25.43 Hect.103.98 Hect.0.83 Hect.

3. Area under Roads(a) RDP 2021 road(b) TDS 4 roads [i/C road over canal](c) TDS 4 internal sector roads

54.12 Hect.19.50 Hect.94.61 Hect.

4. Misc.(a) Community open spaces(b) Graveyard/cremation grounds(c) Approved Layout & Existing construction(d) Bus Stand

38.52 Hect.3.27 Hect.37.38 Hect.0.32 Hect.

377.96 5. Net area available for allotment [647.84-377.96]

Hect.(a) Residential(b) Area reserved for EWS(c) Commercial (i) CBD (ii) Commercial Belts (iii) Sector Level/Local Shopping centre(e) PSP(f) Sector Level (i) Health (ii) Schools(g) Composite

269.88 Hect.188.91 Hect.32.15 Hect.

8.02 Hect.2.31 Hect.5.83 Hect.16.81 Hect.2.40 Hect.5.75 Hect.7.70 Hect.

6. Total Area available for allotment -(a) Area allotted to land holders -(b) Land Pool for Infrastructure Development-(c) Area reserved for EWS

269.88 Hect.178.38 Hect.59.35 Hect.32.15 Hect.

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

2.4 The broad features of the Scheme would show that there

shall be 15 Sectors and the estimated cost of development of

infrastructure would be Rs.1085 crores. The Government has

agreed to hand over its land to the RDA and the land

belonging to the private owners are to be taken over by the

consent or by acquisition u/S 56 of the Act. The RDA has

planned to return the developed reconstituted plots to the

private land owners and it shall not charge any contribution

cost/incremental cost from them with a view to not saddle

with any financial burden on the land holders.

2.5 The various amenities proposed to be given in the

development plan are four lane main roads of 75

meters/45mts/30mts width; two lane roads of 24 mts/18 mts;

with other infrastructure, including street light, service duct,

underground drainage, green area, foot-path, cycle track,

water supply, sewerage treatment plant, central business

district and 30 meters wide commercial tract, abutting ring

road etc.

2.6 The RDA has planned to give about 35% area of

developed plot to the land owners and the remaining area of

their undeveloped plot would be retained which may go to

the other land owners or which may be utilized for the above

facilities under the Development Scheme.

2.7 According to the RDA, 15% of the developed plots have

also been reserved for Economically Weaker Section (EWS)

which comes about 32.15 Hect.

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

2.8 Out of total 4969 private land owners, 39 land owners

did not agree to the Scheme/procedure adopted and preferred

above 23 writ petitions on various grounds which were

dismissed, thereafter, these six Writ Appeals have been filed

by the 13 land owners.

(3) We have heard counsel for the parties.

(4) Learned counsel for the appellants have firstly contended that

there was no zoning plan, therefore, in absence of zoning plan,

preparation of town development scheme (TDS) would stand

vitiated.

(5) To appreciate the said argument, we shall have to look into

the broad features of Adhiniyam 1973. The very purpose of

Adhiniyam 1973 is 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 constitute Town and Country Planning

Authority for proper implementation of town and country

development plan; to make provision for the compulsory

acquisition of land required for the purpose of the development

plans; and to make legal provisions for connected incidental

matters. CHAPTER III of Adhiniyam deals with regional planning

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

and makes provision for establishment of regions, survey of the area

concerned, preparation of regional plans etc. Section 2 (q) defines

“regional plan” which means a plan for the region prepared under

this Act, and approved by the State Government. CHAPTER IV of

Adhiniyam deals with planning area and development plan with a

provision of publication of draft development plan under Section 18

after its preparation under various other provisions of CHAPTER

IV. We may note that under the said process a Committee

constituted under Section 17-A has to consider and suggest

modifications and alterations in the draft development plan and to

hear the objections after publication of the draft development plan

under Section 18. It is after this stage, the sanction of development

plan has to be taken from the State Government under Section 19,

which may either approve the development plan or may approve it

with such modifications as it may consider necessary or may even

return it to modify the same or to prepare a fresh plan in accordance

with such directions as it may deem appropriate. The development

plan shall come into operation from the date of publication of notice

under sub-section (4) of Section 19 and from such date it shall be

binding on all development authorities constituted under the

Adhiniyam and all local authorities functioning within the planning

area.

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

(6) It is after this stage, comes the stage of preparation of zoning

plan which has been defined in CHAPTER V. Whether preparation

of a zoning plan is condition precedent for preparation of a town

development scheme (TDS) under Section 50 of the Adhiniyam

would be clear from the provisions of Sections 20 & 21. Section 20 of

Adhiniyam deals with preparation of Zoning plans and provides that

the local Authority may on its own motion at any time after the

publication of the development plan, or thereafter if so required by

the State Government shall, within six months of such requisition,

prepare a Zoning Plan. What would be the contents of zoning plan

have been described in Section 21 (1). The use of word ‘may’ in

Section 20 makes it clear that it would be on the local authority in all

its wisdom to think about preparation of a zoning plan and thus the

intention of legislature is that the above provision so far as local

authority is concerned, is not mandatory for it, however, if the

requirement is felt by the State Government, the local authority shall

be bound by it to prepare a zoning plan because in second limb of

Section 20 word ‘shall’ has been used opposing the word ‘may’ in

the first limb. We are fortified in our views by the plain rule of

interpretation that the use of word ‘may’ at one place and ‘shall’ at

another place in the same section may strengthen the inference that

these words have been used in their primary sense and that ‘shall’

should be construed as mandatory. That apart, ‘may’ is held in all

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

soundness of construction to confer a power but the word ‘shall’ is

held to make that power, or the exercise of that power compulsory.

(Vide: Principles of Statutory Interpretation by Justice G.P. Singh,

Sixth Edition 1996 p. 261).

(7) In Section 20, firstly word ‘may’ has been used so far as

discretion of the local authority is concerned, thus if the local

authority would be of opinion that a zonal plan should be prepared,

it may do so and it is not a mandatory requirement, but if it is felt by

the State Government that a zoning plan is necessary and directions

are issued, a zoning plan has to be prepared and no further

discretion would lie with any authority because the second part of

Section 20 uses the word ‘shall’.

(8) It also does not appear to be mandatory for the local authority

because Section 21 makes an indication that the zoning plan shall

enlarge the details of land use as indicated in the development plan

and shall further indicate the land liable to acquisition for public

purpose etc., define in detail and provide for areas reserved for

agriculture, public and semi public open spaces, parks, playground,

gardens, recreational areas, green-belts and nature reserves; allocate

in detail areas or zones for residential, commercial, industrial,

agricultural and other purposes; define and provide the road and

streets and indicate about the other infrastructure and amenities

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

proposed under the development plan. That is to say that if in the

opinion of the local authority or the Government it is felt that the

development plan requires further clarification on the details of land

use etc., it may be directed to be done under the zoning plan. This

makes it clear that it would depend on the facts and circumstances

of each case as to whether the preparation of a zoning plan is

essential or not and if it is essential, it has to be prepared which

would contain the above details. We are fortified in our view by the

decision in Sanjai Gandhi Grah Nirman Sahkari Sanstha Maryadit

–Vs- State of M.P. and Others, AIR 1991 Madhya Pradesh, p.72.

Thus it is clear that preparation of a zoning plan is not a mandatory

condition for preparation of a town development scheme under

Section 50 of the Adhiniyam 1973.

(9) It was next contended that there is no scientific basis for

giving 35% developed plot and the decision is arbitrary. It was also

contended that the said action is in contravention of Section 50 (6)

(vi) of the Adhiniyam.

(10) The objection relating to 35% developed plot was dealt with

by the Committee constituted under sub-section (5). In Chapter IV of

the report dated 8.6.2010 (Annexure-R-3/2), the Committee has

discussed about the shape of the reconstituted plots. We find in the

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

report that for this purpose, the provisions of Chhattisgarh Bhumi

Vikas Niyam, 1984 and National Building Code of India, 2005 were

considered. This scheme is a self finance scheme and the

Government has decided not to take any monetary charge for the

infrastructure development which includes various facilities which

we have mentioned earlier. The contents of Table-II (supra) would

show that out of 647.84 Hect., the land available for allotment is only

269.88 Hect. That is to say that 377.96 Hect. have been proposed for

infrastructure development which includes city park, regional park,

water bodies, various roads, community open spaces,

graveyard/cremation ground, bus-stand etc. Apart from that 10%

has been kept in developmental pool and 15% has been kept

reserved for EWS. Therefore, developed land available for allotment

appears to be about 35% of the total land area. The committee has

also quoted the provisions of Avas Niti, 1995 which talks about

giving option to the land owners for taking 20% developed land of

their original land area or their land may be acquired under the

Land Acquisition Act, 1894. It was held that this process may be

applicable for all developmental agencies. In the instant case 35%

developed plots are not being given to all the land owners

uniformly. Reconstituted plots which are being given are in between

35% to 58% on the uniform slab based on original land area and no

one has been given less than 35%. The recommendation of the

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

committee would show that it has considered almost all the

objections regarding developed plot area and its shape and size.

Thus, the 35% arrived at is not baseless and is based on the policy of

the State and other statutory provisions of National Building Code

of India, 2005 and Chhattisgarh Land Development Rules 1984. We

may further note that this Court does not sit as an Appellate

Authority over the decision of the expert committee. Unless the

decision is shown to be malafide or contrary to any law or utterly

perverse, it has to be taken as correct (Vide: Greater Kailash Part II

Welfare Assn. and others –Vs- DLF Universal Ltd and others (2007)

6 SCC 448).

(11) It was argued that after deducting 35% from the original plot

area, the area lost by the land owner would be 65%, therefore, the

contribution exceed 50% which is in violation of Section 50 (6) (vi) of

the Adhiniyam. The above provisions, we quote, says to evaluate

the increment in value of each reconstituted plot and assess the

development contribution leviable on the plot holder. On analysis of

classified percentage of the developed plots, we find that 15% plots

are reserved for EWS. This cannot be said to be coming under

development contribution because the said plots or the monetary

value thereof are not being retained by the RDA. What is not to

exceed more than 50% is the development contribution leviable on

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

the plot holder. Thus if we add this 15% to the 35%, in general

manner it would come to 50% of the total original land area and in

this way the argument relating to exceeding 50% towards

developmental contribution must fail. Making allotment for EWS is

a public purpose and the town planning authority is not prohibited

in law from providing the plots to the persons belonging to the said

Section (Vide: Kiritbhai Nandvadan Bhatt and Ors. –Vs-

Ahmedabad Municipal Corporation and Ors., 1996 (1) G.L.H. 905).

It was argued that the RDA cannot serve the public purpose by

snatching plots of the land holders without authority of law. The

submission appears to be attractive in general sense, but in the

instant scheme the situation is different. Here the planning is not

only on the contribution of the lands by private land holders. In this

planning (Scheme) 128.17 Hect. of government land has also been

added and the lands of the private land holders and the government

land have been brought into hotchpotch within the fore-corners of

the Adhiniyam and then only the arrangement for EWS has been

made. It appears to be quite reasonable. Thus it cannot be said that

the developmental contribution of the private land holder has

exceeded more that 50% and there is violation of Section 50 (6) (vi)

of the Adhiniym.

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

(12) It was next contended by counsel for the appellants that the

master plan has been changed; jurisdiction under Section 23-A has

been wrongly exercised; it is contrary to Section 23-A; the

development plan comes first and thereafter the scheme has to be

framed; therefore, the entire scheme vitiates. Reliance was placed on

Chairman, Indore Vikas Pradhikaran –Vs- Pure Industrial Coke &

Chemical Ltd. and Others, (2007) 8 SCC 705.

(13) To appreciate the argument, we shall firstly look into some

important dates. Initially master plan 2011 was enforced and the

resolution was passed by the RDA on 21.3.2006 for a residential

scheme in village Dunda. Thereafter memo of land use in villages

Dunda, Boriya Khurd and Tikrapara was sent on 8.5.2006. On

31.7.2006 RDA wrote a letter to the Special Secretary, Urban and

Housing Department requesting for permission of publication u/S

50 for integrated township scheme for villages Dunda, Tikrapara,

Boriya Khurd and Deopuri with a request to change the land use

u/S 23-A. On 18.5.2007, Director, Town and Country Planning

replied to the letter dated 3.5.2007 giving permission for publication

u/S 50. On 25.1.2008, the Government granted permission to RDA

for publication of the revised scheme u/S 50 which was a proposal

for 416.93 acres. Thereafter the revised master plan (2021) got

sanctioned and published on 7.4.2008. Then various correspondence

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

for granting permission to publish declaration of intention u/S 50(1)

were made and ultimately on 5.6.2009 notification was published in

the official gazette regarding the intention to prepare town

development scheme for 416.93 acres. Thereafter on 14.7.2009 RDA

passed a resolution for changing the earlier proposal of 416.93 acres

and increased it for an area of 2300 acres in villages Dunda,

Tikrapara, Boriya Khurd, Dumar Tarai and Deopuri. Official

correspondence were made between RDA and the State

Government and then it was granted on 10.8.2009 and thereafter a

notification u/S 50 (2) for amended scheme was published in the

official gazette on 4.9.2009. Thus, it is not a case in which the scheme

was published prior to publication of the master plan. The dates

mentioned by us would show that the master plan was published

first and thereafter the scheme was published.

(14) Section 13 (1) of the Adhiniyam provides that the State

Government may, by notification, constitute planning areas for the

purposes of the Adhiniyam and define the limits thereof. Planning

area, as per Section 2 (o) therefore, has to be declared by exercising

powers u/S 13. Then after completion of formalities, a draft

development plan has to be prepared and ultimately after sanction

the draft development plan has to be published which shall come

into operation from the date of its publication u/S 19 (5) (4) and

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

from date of publication it shall be binding on all development

authorities constituted under the Adhiniyam and all local authorities

functioning within the planning area. The development is a

continuous phenomena. It can never be stopped. Therefore, finality

has not been attached to a development plan by the Legislature in

all its wisdom and Section 19 (5) (4) only talks about its binding

nature. It is for all these reasons, the Legislature has provided

Sections 23 & 23-A so that any need felt after finalization of the

development plan, which would also include the

inclusion/extension of planning area may be fulfilled. Thus Section

23 & 23-A are enabling Sections by which the development plan or

zonal plan can be reviewed and modified. Thus, it cannot be

accepted that the development plan/master plan cannot be

changed.

(15) The case of Indore Vikas Pradhikaran, cited by the counsel for

the appellants, is distinguishable on facts. In the said case two

villages were not coming within the planning area, but the town

development scheme was made, therefore, it was held that the

concerned authority has no power to make such scheme in respect

of two villages. That apart, it was observed that there cannot be

town development scheme without a final development plan. In

case on hand, there was a final development plan before the

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W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

declaration of initiation of scheme by RDA. The dates would clearly

show that on this account the scheme does not vitiate.

(16) Arguing the above points, attack was also made on certain

modifications in the scheme which took place after 14.7.2010. These

modifications were in relation to change of land user u/S 23-A.

Three important changes in land user in the master plan 2021 were

proposed by the RDA. First was where the major part of land at one

place was going in residential and the minor part was going in

agricultural. Here it was sought that the minor part of agricultural

be added to the major part of residential. Second was where the

major part of the land at one place was going in agricultural and

minor part was going in residential. Here it was proposed that the

minor residential part be also placed in major agricultural part.

Third was change of land user of the area reserved for educational

purpose by making change in location and adding said area for

residential purpose. It was argued by State counsel and counsel for

RDA that this was proposed to make plan workable so that the land

of one species of agricultural or residential come at one place. So far

as permissibility to do it under the law is concerned, as we have

already held, there was no difficulty. The question relates to its

genuine necessity and public welfare. According to the scheme of

Sections 23 & 23-A, primarily, these factors for judging would be in

22

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

domain of concerned authority or State Government as has been

provided under these Sections. We are guided by language of both

the Sections which clearly convey that all this was permissible for

urgent public purpose. Explanation to Section 23-A makes it clear

that for the purpose of this section ‘public purpose’ includes

creation, development and maintenance of human settlements or

any part thereof. The Explanation is inclusive, therefore, it has to be

taken in a broad sense keeping in mind the immediate necessity

which would be beneficial to the people at large and making the

scheme workable in public interest. If the lands of one species are

kept in one place making area embarked enlarged, it cannot be said

as unreasonable. It’s a matter of common knowledge that many

times, agricultural work in a small piece of land which is

surrounded by large residential locality is not fruitful. Likewise a

small piece of land for residential purpose surrounded by

agricultural land may not be suitable for the residents who would

always like to be among the community. That apart, we must

mention that so far as the present appellants are concerned, none of

them has a land coming within the area wherein the above

modifications were sought by the RDA. Moreover the modifications

sought were hardly affecting 8% of the total land area of the town

development scheme which would be further minimized because

some part of proposal was ultimately not sanctioned.

23

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

(17) It was also argued that there was no urgent public purpose.

Section 54 of the Adhiniyam provides that if the Town and Country

Development Authority fails to commence implementation of the

Town Development Scheme within a period of two years or

complete its implementation within a period of five years from the

date of notification of the final scheme under section 50, it shall, on

expiration of the said period of two years or five years, as the case

may be, lapse. Therefore, the respective implementations have been

restricted within the specified period and a town development

scheme has to be completed in scheduled time frame. We have

already held that change in said land user was for public purpose.

Therefore, invocation of jurisdiction u/S 23-A was exercised for the

purpose of completion of the scheme within specified time period

and save it from lapsing and the need was an urgent public need.

Moreover, no fruitful purpose would be served in remitting the

matter to the initial stage because in absence of any legal

impediment it would a mere formality and would adversely affect

the interest of public at large whose lands have already been taken

and who would be waiting for the developed plots because a delay

is also likely to be caused in adopting such process. We are of the

view that for the foregoing reasons, the argument advanced by the

counsel for the appellants cannot be accepted.

24

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

(18) It was next contended that there was violation of procedure as

stated u/S 23-A (2). Two points were raised in this regard. First,

notices were not published continuously for two days in the local

newspapers; and second, modified plan was not published along

with notices in the newspapers and at conspicuous place, thereby

violating the mandatory provisions.

(19) It is an admitted position that the notice of draft modification

plan was published in two daily newspapers on 5.11.2010 and

7.11.2010. Learned counsel for the appellants have contended that

there was a gap of one day in publication of the notices, therefore, it

cannot be held as the said notices were published continuously for

two days as contained in Section 23-A (2). They have relied on

Bhopal Citizens’ Forum –Vs- State of M.P. and Others, 2011 (1)

M.P.L.J. 51. Learned State counsel has argued, and it is also factually

correct, that 6.11.2010 was holiday on account of Dipawali Festival

and the two newspapers in which the notices were published, were

not published on 6.11.2010. In Bhopal Citizens’ (supra), it was held

that the provisions of Section 23-A as amended by the Amending

Act, 2005, are intra vires and it was also held that manner of

requirement of publication of notice contained in Section 23-A (2) is

mandatory in nature. There is no dispute about the above legal

25

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

position. However, in the said case, as we find from Para-28, the

context was that the publication was made only once and there was

no second publication at all. But, in case on hand, the publication

was made on two days and so far as requirement of publication on

two days in two daily newspapers is concerned, there is no

violation. The question is whether the publication on 5.11.2010 and

7.11.2010 when the newspapers were not published on 6.11.2010 on

the eve of Dipawali, would be held as continuous publication or

not? The learned single Judge has dealt with this ground in Para-23

of the impugned judgment, and referring to the decision of S.E. and

Stamping Works Limited –Vs- The Workmen, AIR 1963 SC 1914, has

held that it shall be treated that the notification was published on

two continuous days. We have carefully examined the reasons for

holding like that and we find it to be correct and logical. The words

used like ‘continuously for two days’ in sub-section (2), if given

plain meaning in the facts and circumstances of the case, would

mean that two days of continuous dates of publication of the

newspapers. If the newspapers were not published on the second

day and the third day’s publication was in continuation of the first

day’s publication, it would be treated that the notice was published

on two continuous days and argument advanced by counsel for the

appellants must fail.

26

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

(20) For the next argument we note that in the newspaper, khasra

numbers, village name and the proposed modifications were

mentioned and it was also mentioned that the draft development

plan is open for inspection and any aggrieved person can inspect it

in the Office of Collector, Raipur; Joint Director, Town and Country

Planning, Regional Office, Raipur; Chief Executive Officer, RDA and

Commissioner, Municipal Corporation, Raipur. It was also clearly

mentioned in the notice about submission of Objections etc. For

ready reference, we quote the relevant portion of the concerned

notification:-

2- mDr izLrkfor mikarj.k jk;iqj izkf/kdj.k] jk;iqj dh dey fogkj

;kstuk dzekad & 04 ds iz;kstu ds fy, gS A mikarj.k izLrko dh izfr

ekufp= lfgr dysDVj] jk;iqj] la;qDr lapkyd uxj rFkk xzke fuos’k

{ks=h; dk;kZy; jk;iqj] eq[; dk;Zikyu vf/kdkjh] jk;iqj fodkl

izkf/kdj.k] jk;iqj RkFkk vk;qDr uxj ikfyd fuxe jk;iqj ds dk;kZy;ksa esa

dk;Zy; le; esa vodk’k NksM+dj fujh{k.k ds fy, miyC/k jgsxh A

vr% izLrkfor mikarj.k ls izHkkfor gksus okys O;fDr;ksa ls bl

lwpuk ds nSfud lekpkj i=ksa esa izdk’ku dh frfFk ls 15 fnol ds Hkhrj

fyf[kr vkifRr;ka rFkk lq>ko vkeaf=r fd;s tkrs gS A vkifRr RkFkk

lq>ko fuEufyf[kr dk;kZy;ksa esa izLrqr fd;s tk ldrs gS A

¼1½ dysDVj dk;kZy; & jk;iqj A¼2½ la;qDr lapkyd] uxj rFkk xzke fuos’k’ {ks=h; dk;kZy;] jk;iqj A¼3½ eq[; dk;Zikyu vf/kdkjh] jk;iqj fodkl izkf/kdj.k] jk;iqj A¼4½ vk;qDr] uxj ikfyd fuxe jk;iqj A

NRrhlx<+ ds jkT;iky ds uke rFkkvkns’kkuqlkj

¼,u- cStsUnz dqekj½ izeq[k lfpo]th & 15406 NRrhlx<+ ‘kklu vkokl ,oa Ik;kZoj.k foHkkx

27

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

It is thus clear that the modified plan was made available for

inspection of public at large at conspicuous places as per Section

23-A (2).

(21) It was next contended that the notification date 4.3.2011 was in

violation of Article 166 of the Constitution as it was not duly

authenticated by Governor. Learned counsel for the State has

contended that the practice prevailing since the erstwhile State of

Madhya Pradesh is that if there are more than one notifications

published on the same day, they are printed in continuation and

after the last notification it is mentioned that they were issued in the

name of and by order of Governor and signature of the concerned

Secretary is appended. Various notifications were shown to us

which were published in the above fashion in the concerned

Gazette. It appears to be a long past practice prevailing in the State.

In Iftikhar Ahmed Son of Dost Mohammad –Vs- State of Madhya

Pradesh and Others, AIR 1961 MP 140), it was held that when

several notifications appeared together in the Gazette under the

signature of the Under Secretary at the end of the series, there is no

illegality and there is proper authentication of all such notifications.

Moreover, the memo issued for publication would show that it was

issued by the order and on the name of the Governor. Thus

28

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

argument relating to improper authentication of the notification

fails and the same is rejected.

(22) Learned counsel for the appellants have next contended that

the lands of private owners are being taken without payment of

compensation and without valid transfer of title.

(23) Learned counsel for the respondents have opposed these

arguments and have referred to the provisions of Sections 49 & 56 of

the Adhiniyam. The State counsel has also referred to the decision of

State of Gujarat –Vs- Shantilal Mangaldas and Others, AIR 1969

SC 634.

(24) Section 49 of the Adhiniyam provides that a town development

scheme may make provision for any of the following matters:-

(i) acquisition, development and sale or leasing of

land 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;

(iii) acquisition and development of land for public

purposes such as housing development, development of

shopping centres, cultural centres, administrative centres;

(iv) acquisition and development of areas for

commercial and industrial purposes;

29

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

(v) undertaking of such building or construction work

as may be necessary to provide housing, shopping,

commercial or other facilities;

(vi) acquisition of land and its development for the

purpose of laying out or remodeling of road and street

patterns;

(vii) acquisition and development of land for

playgrounds, parks, recreation centres and stadia;

(viii) reconstruction of plots for the purpose of

buildings, roads, drains, sewage lines and other similar

amenities;

(ix) any other work of a nature such as would bring

about environmental improvements which may be taken up

by the authority with the prior approval of the State

Government.

(25) Section 56 of the Adhiniyam gives power to the Town and

Country Development Authority for acquisition of land. It provides

that after the date of the publication of the final town development

scheme under section 50, but not later than three years therefrom,

the said Authority may proceed to acquire by agreement the land

required for the implementation of the scheme. It further provides

that if the said Authority fails to make acquisition in the above

manner, the State Government may proceed to acquire such land

under the provisions of the Land Acquisition Act, 1894 and on the

payment of compensation awarded under that Act and any other

charges incurred by the State Government in connection with the

30

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

acquisition, the land shall vest in the Town and Country

Development Authority subject to such terms and conditions as

may be prescribed. Thus, there are two modes of acquisition as per

the statute. One by agreement and other by general law of

acquisition under the Act, 1894. So far as compensation is

concerned, it would be mandatory if the acquisition is under the

general law that is under the Act 1894 and in such case the land in

question shall vest in the Town and Country Development

Authority making it to be clear case of vesting under the law. So far

as acquisition by agreement is concerned, there is neither vesting

nor transfer of title, therefore, the Adhiniyam does not provide for a

compensation in such cases. In the instant case, the developed plots

have been proposed to be given to the land holders and who are not

agreeable to it, have been given option to take monetary value.

(26) In Shantilal (supra), it was observed with reference to Bombay

Town Planning Act that in making a Town Planning Scheme the

lands of all persons covered by the scheme are treated as if they are

put in a pool. The Town Planning Officer then proceeds to

reconstitute the plots for residential buildings and to reserve lands

for public purposes. Reconstituted plots are allotted to the land-

holders. The reconstituted plots having regard to the exigencies of

the scheme need not be of the same dimensions as the original land.

31

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

Their shape and size may be altered and even the site of the

reconstituted plot allotted to an owner may be shifted. The Town

Planning Officer may lay out new roads, divert or close existing

roads, reserve lands for recreation grounds, schools, markets, green

belts and similar public purposes, and provide for drainage,

lighting, water-supply, filling up or reclamation of low-lying,

swamp or unhealthy areas or leveling up of land so that the total

area included in the scheme may conduce to the health and well-

being of the residents. Since the Town Planning Scheme is intended

to improve the sanitary conditions prevailing in a locality, the

owners of plots are required to maintain land open around their

buildings. The object of the scheme being to provide amenities for

the benefit of the residents generally, the area in the occupation of

the individual holders of land is generally reduced, for they have to

contribute out of their plots, areas which are required for

maintaining the services beneficial to the community. It was further

observed that in this process the whole or part of a land of one

person, may go to make a reconstituted plot, and the plot so

reconstituted may be allotted to another person and the lands

needed for public purposes may be earmarked for those purposes. It

was further held, in light of Section 53 of the Bombay Act, that it

does not provide that the reconstituted plot is transferred or is to be

deemed to be transferred from the local authority to the owner of

32

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

the original plot. In terms Section 53 provides for statutory re-

adjustment of the rights of the owners of the original plots of land.

There is no vesting of the original plots in the local authority, nor

transfer of the rights of the local authority in the reconstituted plots.

(27) On the above analogy, as we have said in case of acquisition

by agreement, there is no question of transfer of the title nor there is

vesting of the land in the RDA. It is a simple re-adjustment of the

rights of the owners of the original plots of land, which is not

prohibited under any provisions. When the source of such

acquisition is clearly provided u/S 56, there cannot be a challenge

on this account particularly by persons (appellants herein) whose

lands have not been acquired in the above manner. We have been

told by respondent’s counsel that all the private land owners except

the above 13 appellants have agreed for acquisition by agreement

and land acquisition proceedings under the Act 1894 have been

initiated against the appellants. It was also stated by them that now

Hemant Chhatri (appellant in W.A. No. 381 of 2013) has also

entered into an agreement with the RDA. In light of the above facts

and circumstances, we find no force in the said arguments and the

same has to be rejected.

33

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

(28) Learned counsel for the appellants have next contended that

the RDA has not taken development permission u/S 28 of the

Adhiniyam, therefore, the entire development scheme vitiates.

Reliance was placed on Sections 27 & 28.

(29) The argument is totally misconceived. Section 27 talks about

the development undertaken on behalf of Union or State

Government. It provides that when the Union Government or the

State Government intends to carry out development of any land for

the purpose of its departments or offices or authorities, the officer-

in-charge thereof shall inform in writing to the Director the

intention of the Government to do so, giving full particulars thereof,

accompanied by such documents and plans as may be prescribed

atleast thirty days before undertaking such development. Likewise

Section 28 provides for Development by Local Authority or by any

authority constituted under the Adhiniyam, 1973. According to this

Section, where a Local Authority or any authority specially

constituted under this Adhiniyam intends to carry out development

on any land for the purpose of that authority, the procedure

applicable to the Union or State Government under section 27 shall,

mutatis mutandis, apply in respect to such authority. Thus, these

provisions talk about the development of land for the purpose of

concerned authorities/departments/officers thereof. In the instant

34

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

case, though RDA is an authority for the purpose of Section 28, but

the development scheme has not been prepared for the purpose of

the RDA. Therefore, the provisions of these Sections would not

apply to the present scheme/acquisition. In the instant case, the

provisions of Sections 49 & 50 would be applicable which are self

contained in all respects giving a clear mode of acquisition for

public purpose and any town development scheme prepared u/Ss

49 & 50 would not be subject to the permission referred to in

Sections 27 & 28 because the nature of scheme and acquisition under

these two sections are quite different than that reflected in Sections

27 & 28.

(30) It was next contended by the counsel for the appellants that

amendment brought in Section 50 enacting a new sub-section i.e. 50

(8) without assent of the President is illegal and incompetent,

therefore, the amending provisions are ultra vires and actions taken

under the said provisions vitiate.

(31) The said argument was vehemently opposed by the counsel

for the respondents on the ground that the amending provisions

were not challenged in any writ petition; the said argument was

never raised before the single Bench; even there are no averments in

the memo of appeals relating to vires of Section 50 (8), therefore, the

35

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

said argument cannot be entertained and the validity of the

amending provisions cannot be examined in these appeals.

(32) State Government vide C.G. Act No. 22 of 2010 brought

amendment and made following provisions with effect from

6.9.2010 :-

50 (8) (i) Where a town development scheme has

come into operation, all lands required by the Town &

Country Development Authority for the purposes specified in

following clauses :-

(a) Layout of new streets or roads, construction,

diversion, extension, alteration, improvement and

closing up of streets and roads and

discontinuance of communications, etc.;

(b) Drainage, inclusive of sewerage, surface or

sub-soil drainage and sewage disposal;

(c) Lighting;

(d) Water supply;

shall vest absolutely in the Town and Country Development

Authority free from all encumbrances.

(ii) Nothing in sub-section (i) shall affect any

right of the owner of the land vesting in the appropriate

authority under that sub-section.2

(33) The vires of the above amendment was not challenged by the

appellants in their writ petitions. No relief relating to such

declaration was claimed by them. There is no pleading in the writ

36

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

petitions challenging the constitutional validity of the said Act on

any ground. Even there is no averment in the memo of appeals. It is

for the first time the arguments have been advanced by the counsel

for the appellants raising singular contention that the assent of

President was not taken for the Amending Act and the Amending

Act was brought with the assent of the Governor.

(34) Let us firstly remember the basic principles that the

presumption is always in favour of the constitutionality of an

enactment, and the burden is upon person who challenges the

constitutionality to show that there has been a clear transgression of

the constitutional principles. Thus the burden of proving all the

facts which are requisite for the constitutional validity is upon the

person who challenges the constitutionality (Vide: Chiranjit Lal

Chowdhuri –Vs- Union of India, AIR 1951 SC 41; Cf. Rao Shiv

Bahadur Singh –Vs- State of U.P., AIR 1953 SC 394 and Ramarao –

Vs- All India Backward Class Bank Employees Welfare

Association, AIR 2004 SC 1459). Where the constitutional validity of

a provision is not under challenge, the Court will have to proceed

on the basis that the same is intra vires and interpret the same as

such (Vide: Molar Mal –Vs- Kay Iron Works (P) Ltd., (2000) 4 SCC

285).

37

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

(35) Pressing the above argument by counsel for the appellants

attracts the doctrine to collateral challenge. In a collateral challenge

the exercise is not the invalidation of a decision, but only to

ascertain whether the decision exists in law at all and rely upon

incidents and effect of its “non-existence”. Doctrine of collateral

challenge will not apply to a decision which is valid ex-hypothesi and

which has some presumptive existence, validity and effect in law.

Such a decision can be invalidated by the right person in right

proceedings brought at the right time. It is only a nullity stemming

from lack of inherent jurisdiction or a proceeding that wears the

brand of invalidity on its forehead that might afford a defence even

against enforcement (Vide: Pankaj Bhargava and Another –Vs-

Mohinder Nath and Another, (1991) 1 SCC 556). Here the matter

relates to existence of an Act which is ex facie valid unless declared

invalid in a proper proceeding on proper foundation laid down by

the concerned party and the same principle would apply. We are of

the opinion that no law which is valid ex facie carrying presumption

of its correctness and validity can be invalidated in an incidental

proceeding in light of the Doctrine of collateral challenge. That

apart, there are restrictions on the appellate jurisdiction when

pleadings etc. have never been raised. Thus, we do not wish to

express our views on the above argument on merit and we declined

38

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

to entertain the said argument raised for the first time in these intra

court appeals without any foundation for the same.

(36) It was next contended that Environmental Clearance was not

obtained from the appropriate Authority. It was contended that

looking to the area of the project; Environmental Clearance was

required from the Central Government.

(37) Mr. Desai has contended that it was a project falling under

Category B-1 project; therefore, Environmental Clearance was

required from the State Level Environment Impact Assessment

Authority (SLEIAA), which was duly obtained.

(38) A perusal of the record would show that Environmental

Clearance was obtained from SLEIAA vide its order dated

25.01.2011. The notification issued by the Ministry of Environment

and Forest (MOEF) dated 14.09.2006, which is not disputed by both

the parties, two categories of projects were formed namely-

Category ‘A’ and Category ‘B’. For Category ‘A’ project, clearance

has to be obtained from the Central Government, whereas, for

Category ‘B’ project, it has to be obtained from the SLEIAA. In

classification, the instant project is covered under Clause VIII (b) of

the notification as it covers an area of more than 50 hectares for

39

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

Township and is a Category B-1 project. Thus, it cannot be said that

Environmental Clearance was not obtained from the appropriate

Authority or it was a case in which, Environmental Clearance from

the Central Government was required. Moreover, we find that the

Central Government, in its return filed in one of the Writ Petitions

(WP(C) No.6040/2011), has stated on oath that the project has been

duly cleared by appropriate Authority. In view of the above facts

situation and particularly in the light of the notification dated

14.09.2006 as also in the light of categorical admission of the Central

Government, it cannot be held that proper Environmental Clearance

was not obtained from the concerned Authority.

(39) It was also contended in Writ Appeal No.393/2013 that the

land of the appellants, which is situated at a distance of 1.5 km from

the remaining area of the project, has been included with malafide

intention. This point has been dealt with by the writ Court vide para

48 of the judgment. The writ Court has mentioned factual aspects in

this paragraph, including that the appellants’ land is connected with

the Scheme area through the Highway. It has been observed by the

writ Court that the cluster of land in question, which is covered

under Sector 14-B and 15-C of the sanctioned lay-out plan of the

Scheme, belongs to as many as 19 land owners. Thus, it was not a

40

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

case that only the land of the appellants, situated at a distance of 1.5

km, has been singled out for inclusion in the Scheme.

(40) That apart, we also note that even in the draft scheme, the said

area was shown and no objection was filed to the effect that this area

was included in the draft scheme malafidely or intentionally as it is

now contended by the appellants.

(41) In Babulal Badriprasad Verma Vs. Surat Municipal

Corporation (2008) 12 SCC 401, it was held that if no objection was

raised before the Committee in respect of the draft scheme, the

petitioners are estopped from raising such contentions before the

writ Court. It is on these grounds, the writ Court has not

entertained the said objection. We have carefully gone through the

contents of the record. Since no such objection was raised by the

appellants before the appropriate Authority, they would be

estopped from challenging the inclusion of their land on the

grounds of malafide, which they have raised for the first time before

the writ Court and the writ Court has rightly refused to entertain

their grounds.

41

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

(42) Learned counsel for the appellants have also contended that

the RDA was not competent to sale the developed plots, which they

have kept in ‘land pool’.

(43) The contention of the respondents is that 10% developed plots,

which have been reserved as ‘land pool’, have to be sold because the

Committee has taken a decision not to recover the amount of

incremental development contribution. Their argument was that

the Authority can only generate the amount from sale of the land,

which are kept in ‘land pool’, for the purpose of providing

infrastructural facilities. We note from the Scheme that no

development cost is being incurred from the land owners and the

same is being borne by the Authority. The infrastructural facilities,

which are being provided, are, roads, drainage, water supply,

electricity, recreation centres, Bus stand and almost all other

amenities, which are required for a well-developed residential area.

(44) The question is whether the RDA was competent to do so and

if it can do so, whether the quantum of ‘land pool’ is reasonable?

(45) Section 49 (supra) provides that a town development scheme

may make provision for various matters included therein. Clause

(i) of Section 49 clearly provides that the Scheme may make

42

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

provisions for acquisition, development and sale or leasing of land

for the purpose of town expansion. Clause (iii) further provides for

acquisition and development of land for public purposes such as

housing development, development of shopping centres, cultural

centres and administrative centres. Likewise, Clause (viii) provides

for reconstruction of plots for the purpose of buildings, roads,

drains, sewage lines and other similar amenities. A conjoint reading

of these Clauses of Section 49 and various other Clauses, would

show that there is noting in the Act which may prohibit an

Authority to sale or lease out the land which may include a

developed land under the land development scheme. On the

contrary, the provisions appear to be enabling. Thus, there can be

hardly any doubt in saying that the Authority has jurisdiction to

sale the developed land.

(46) So far as reasonableness of 10% is concerned, we may note

from the Scheme that there are provisions for city park, regional

park, water bodies, wide roads and lanes, internal sector roads,

community open spaces, graveyard/cremation grounds, Bus stand,

health centres, Schools and commercial-belts. (See: Table-II supra).

If no incremental development contribution is being taken from the

land owners and the Authority has decided to keep only 10% of

developed land in ‘land pool’ to meet the infrastructural

43

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

development cost, the same cannot be said to be unreasonable and

unjust so as to interfere by this Court.

(47) For the foregoing reasons, we find no substance in these

appeals. The appeals are liable to be dismissed and are hereby

dismissed.

(48) No order(s) as to cost(s).

JUDGE JUDGE

Vatti

44

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

HEAD LINES

1. Doctrine of collateral challenge - No law which is valid

ex facie carrying presumption of its correctness and validity

can be invalidated in an incidental proceeding without laying

down any foundation.

1- lkaEikf’oZd pqukSrh dk fl)kar & dksbZ dkuwu tks izR;{kr% oS/kkfud gS] vkSj

ftlds mfpr o oS/k gksus dh mi/kkj.kk dh tkrh gS] fdlh vuq”kkafxd izfdz;k esa

fcuk fdlh vk/kkj ds voS/kkfud ?kksf”kr ugh fd;k tk ldrk A

2. Where the constitutional validity of a provision is not under

challenge, the Court will have to proceed on the basis that the

same is intra vires and interpret the same as such.

2- tgka fdlh izko/kku dh laoS/kkfudrk dks pqukSrh ugh nh xbZ gS ogka U;k;ky;

bl mi/kkj.kk ij pysxh dh mDr izko/kku iw.kZr% laoS/kkfud gS ,oa mls

mlh :Ik es O;k[;k djsxh A

B.O.

(R.K. Vatti) Private Secretary

45

W.A. Nos. 379; 380; 381; 382; 389 & 393 of 2013

HIGH COURT OF CHHATTISGARH, BILASPUR

Coram: Hon’ble Shri Sunil Kumar Sinha &Hon’ble Shri Inder Singh Uboweja, J J.


Bulamal Chhatri

Vs.

State of Chhattisgarh & Others&

(Connected W.A. Nos. 380; 381; 382; 389 & 393 of 2013)

JUDGMENT

For consideration

Judge /05/2014

Hon’ble Shri Justice Inder Singh Uboweja

Judge /06/2014

Post for Judgment: /06/2014

Judge /06/2014

46

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