Case: Rajendra Shankar Shukla And Ors. Etc Vs. State Of Chhatisgarh And Ors. Etc. Etc


Decision:
1[ds]13. In the present case, the District Planning Committee (DPC) has been constituted under Section 3 of the Chhattisgarh Zila Yojna Samiti Act, 1995 (for short the Act of 1995) with an intention to democratize the town planning process to give effect to the legislative intendment. Section 7 of the Act of 1995 provides for functions of the DPC as has been prescribed by the Constitution. The Constitution under Article 243ZD directs setting up of a DPC to consolidate the plans prepared by Panchayats and Municipalities in the Districts and to prepare a draft development plan for district as a whole and the Director of every DPC shall forward such development plans as recommended by the Committee to the government of the State19. We are in agreement with the legal contentions raised by the learned senior counsel on behalf of the appellants. Once the Constitution provides for democratically elected bodies for local, a nominated body like Respondent No. 226. We are inclined to agree with the fact that the Development Plan and its modification has not been made in accordance with the constitutional mandate and the Act of 1973. It is further contended by the learned senior counsel on behalf of the appellants that in the backdrop of the aforesaid Constitutional morality and the fact situation of the cases in hand, the decision of the Respondent No.2RDA to add 1900 acres of land at different stages, and also change of land use, is sullied by bias of Sri S.S. Bajaj, who acted in different capacities in relation to the same transaction wherein each authority was expected to apply its mind independently of each other. The said contention by the learned senior counsel on behalf of the appellants is well founded and the same must be accepted by this Court. There is strong substance and evidence in the submissions of the learned senior counsel of the appellants. As per the evidence produced before us, on 20.07.2009, one Sri S.S. Bajaj, served as the CEO of the Respondent No. 2RDA proposed addition of 1900 acres of land in KVTDS. About 20 days later, on 10.08.2009, the same Mr. S.S. Bajaj was serving as Special Secretary, Department of Housing & Environment, Chhattisgarh Government, which is Respondent No.1 before us has approved the said addition of 1900 acres of land to the scheme which is a clear case of biasIndependently, it is evident from the fact that on 20th July, 2009, a proposal was sent by the Respondent No. 2RDA to the Respondent No. 1State Government and the same was approved by Sri S.S. Bajaj, who at that point of time was acting as Special Secretary, Department of Housing and Environment, Government of Chhattisgarh who had also proposed the addition of 1900 acres to be included in the scheme when he was acting as the CEO of the RDA. It is evident from the evidence put on record before us that the same person was acting in two different capacities who proposed as well as accepted the plan of addition of land at subsequent stage. The said proposal was accepted within a span of 20 days only i.e. on 10.08.200931. Apart from the said contravention made by the Respondent No. 2RDA, its proposal to have township of 2300 acres of land was examined by a Committee constituted under Section 50(5) of the Act of 1973, which prepared its report dated 8.6.2010. The same was accepted by Shri S.S. Bajaj, Chairman of Respondent No.A 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 aforesaid undisputed facts in relation to the action taken by the Respondent No.e Government, to give permission only after applying its mind independently on the materials submitted by the Respondent No.A 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. 2RDA has rendered otiose. It is a well established principle in the Indian jurisprudence that no one can be a judge in his own caseTherefore, 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. 1State 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. 2RDA. The Respondent No. 1State 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 10.08.2009 was granted by the State Government without any application of mind and objective consideration by the Respondent No.e 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 appellantsRDA is entrusted with a duty to implement the master plan under Section 38(2) of the Act of 1973. The resolution dated 5.11.2009 passed by the Respondent No.A 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 well the provisions of the Act of 1973As per the factual averments of this case, the Respondent No. 2RDA, 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. 2RDA 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. 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 197339. Though we have answered point no. 2 in favour of the appellant, we intend to mention other grounds too, which render KVTDS as illegalThus, 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 PlanTherefore, in the absence of a zonal plan in place, the Respondent No.A has skipped the legal mandate in place for preparation of a Town Development Scheme42. 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 sufficient particularity the details for which the broadly indicated use of land in the Development Plan may be put. Respondent No. 2RDA is not permitted to either usurp or bypass the power vested with the local authorities for preparing town development scheme 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. 1State 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 Act46. In the light of the facts and circumstances of the case, the legal contentions urged before us, the provisions of the Act and also in the light of the legal principles already laid down by this Court, we are of the opinion that Respondent No. 2RDA could not have formulated48. 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 committee has violated the mandatory provision of providing a complete report before acquiring land from landowners which often results in loss of livelihood for poor agriculturistssince 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. The manner in which the computation of increment in the value of the reconstituted plot has been arrived at, is vague53. In the instant case, the Respondent No. 1State Government granted permission to Respondent No. 2RDA 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 as Tikrapara pursuant to the Board Resolution by circulations dated 12.5.2009 and 5.6.2009. Afterwards the Respondent No. 1State 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 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 20.08.2009, a declaration of intention was published for amended scheme 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 is not in accordance with the procedure prescribed under the Act and the entire process had to be commenced de novo56. From a careful reading of the aforesaid conclusions, it is evident that the board conferred power upon the Respondent No.A 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 scheme57. 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.A 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 purpose64. 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 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 recommendations of the Committee did not carry any weight. This action of the State Government is vitiated in law and therefore liable to be set aside65. It can be asserted from the evidence on record produced before us that the Committee constituted under Section 50(5) of the Act, heard objections of the land owners from 25.01.2010 to 2.6.2010. At the same time, the Respondent No. 2RDA proposed change of land use on 15.4.2010 and 20.5.2010 and even thealso prepared and approved on 26.5.2010. This shows that the hearing and consideration of the land owners objections was only a sham. The committee hadd 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 2.6.2010 was immaterial66. 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. 2RDA had made it clear to the Respondent No. 1State Government that agricultural land will be excludedTherefore, 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 respondentWhen 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 from the State Government. The State Government on the other hand, cannot involuntarily acquire land and impose developmental charges in the same breath69. We come to this conclusion further on the ground that 35% figure was arrived at by Respondent No. 2RDA 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. 2RDA had already taken a decision that not more than 40% of land will be returned to the land owners. This decision is arrived at without taking into consideration the value of each portion of land on the basis of their geographical locations71. Even under Section 40(3)(jj)(a) of the Gujarat Act, 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 (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 by them78. 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 land use proposals in the scheme area as provided under the said master plan. On 31.1.2011, the respondent no.1The 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 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 Dumartarai and also from Educational to Residential area in village Tikrapara79. As per condition (ii) in the aforesaid notification, 185 hectares of land has to be maintained. The land use approved by the Board on 22.6.2010 only provides for 129.42 hectares of land for green zone81. Section 50(8) of the Act cannot be made retrospectively applicable. In the absence of vesting of land 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 10.8.2009. The Scheme was finalised on 26.5.2010, by which date, no land had been acquired by Respondent No. 2RDA 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. 2RDA. Therefore, we are of the opinion that due to the change in the scope of the project, Respondent No. 2RDA 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 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.