Case: Ahmedabad Municipal Corporation &amp; Others Vs. Ahmedabad Green Belt Khedut Mandal &amp; Others

bring any scheme whatsoever for the reason that as per that judgment also, land could be used for residential purposes and the authority’s draft scheme also provides for residential purposes. That does not mean that it would be used exclusively for residential purpose and it cannot have even small marketing place or a small dispensary.36. Section 40 of the Act 1976 contains the words “regard being had” and thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power.37. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. (See: The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529 ; Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659 ; and Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC 30 ).38. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.39. In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law.40. In the transferred cases, the resolution dated 16.5.2008 providing the extent of taking over the land to 50% has been challenged on the ground that in other similar schemes in Vadodara, the maximum land taken by the State/Authority had been only upto 30%. Therefore, the deduction to the extent of 50% of the total land of a tenure-holder is illegal acquisition or amounts to expropriation and not acquisition. It is further submitted by Shri Huzefa Ahmadi, learned senior counsel appearing for the petitioners in transferred cases that in case of non-agricultural land, the deduction may be upto 20% and for agricultural land it may be upto 30%. Shri Ahmadi has placed a very heavy reliance on a chart filed by him showing that in other similar cases, a very lesser area had been deducted by the State/Authority and in the instant case 15% area had been proposed for sale without drawing the balance sheet. In such a fact-situation, the cases have to be allowed.41. On the contrary, Shri Preetesh Kapur appearing for the respondents has submitted that it is pre-mature to challenge the resolution dated 16.5.2008 as it is a first step to initiate the proceedings under the Act and the Rules. The draft scheme issued under Section 48 of the Act 1976 empowers the State Government to sanction a draft scheme and clause (3) thereof provides that if the State Government sanctions the scheme, a notification shall be issued stating at what place and time the draft scheme shall be open for the inspection of the public after which the procedure prescribed under Sections 50 and 51 would be followed. At that stage Rule 26 which provides that for the purpose of preparing the preliminary scheme and final scheme, the Town Planning Officer shall give notice in Form ‘H’ of the date on which he will commence his duties and shall state the time as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a scheme would be entitled under Section 82 to make a claim before him. Such notice should be published in the official gazette also and the law further requires the filing of the objections and the personal hearing to such person who would be adversely affected.42. In the instant Transferred Case, as the authority is only dealing with the issues at a draft stage and the applicants have ample opportunity to file their objections and are entitled to personal hearing as required under Rule 26 clause (4), the matter can be adjudicated before the statutory authority.Therefore, in view of the above, we are of the considered opinion that the apprehensions raised by the applicants at this stage are pre-mature. Admittedly, the applicants have filed their objections raising their grievance and they had also been given the personal hearing by the statutory authorities on all permissible, factual and legal grounds. The learned counsel appearing for the State/Authorities has submitted that in case the applicants are not satisfied and make fresh objections within 30 days from today, they would be provided a fresh opportunity of hearing. However, it is too early to anticipate as what order would be passed on their objections. In case, they are aggrieved by the order passed after hearing their objections, they have a statutory right to approach the appropriate forum challenging the same.43. In view of the above, we do not think it proper to decide the cases on merits at such a premature stage. More so, there is no reason to believe that the authorities would act arbitrarily and would not take into consideration the grievance raised by the applicants.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]35. Thus, we do not find any force in the submissions made on behalf of the tenure-holders for the simple reason that after the judgment in Bhikhubhai Vithalbhai Patel v. State of Gujarat & Anr., AIR 2008 SC 1771 , it was not permissible for the statutory authorities to bring any scheme whatsoever for the reason that as per that judgment also, land could be used for residential purposes and thedraft scheme also provides for residential purposes. That does not mean that it would be used exclusively for residential purpose and it cannot have even small marketing place or a small dispensary.36. Section 40 of the Act 1976 contains the wordsand thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power.37. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. (See: The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529 ; Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659 ; and Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC 30 ).38. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.39. In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law.40. In the transferred cases, the resolution dated 16.5.2008 providing the extent of taking over the land to 50% has been challenged on the ground that in other similar schemes in Vadodara, the maximum land taken by the State/Authority had been only upto 30%. Therefore, the deduction to the extent of 50% of the total land of a tenure-holder is illegal acquisition or amounts to expropriation and not acquisition. It is further submitted by Shri Huzefa Ahmadi, learned senior counsel appearing for the petitioners in transferred cases that in case of non-agricultural land, the deduction may be upto 20% and for agricultural land it may be upto 30%. Shri Ahmadi has placed a very heavy reliance on a chart filed by him showing that in other similar cases, a very lesser area had been deducted by the State/Authority and in the instant case 15% area had been proposed for sale without drawing the balance sheet. In such a fact-situation, the cases have to be allowed.41. On the contrary, Shri Preetesh Kapur appearing for the respondents has submitted that it is pre-mature to challenge the resolution dated 16.5.2008 as it is a first step to initiate the proceedings under the Act and the Rules. The draft scheme issued under Section 48 of the Act 1976 empowers the State Government to sanction a draft scheme and clause (3) thereof provides that if the State Government sanctions the scheme, a notification shall be issued stating at what place and time the draft scheme shall be open for the inspection of the public after which the procedure prescribed under Sections 50 and 51 would be followed. At that stage Rule 26 which provides that for the purpose of preparing the preliminary scheme and final scheme, the Town Planning Officer shall give notice in Formof the date on which he will commence his duties and shall state the time as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a scheme would be entitled under Section 82 to make a claim before him. Such notice should be published in the official gazette also and the law further requires the filing of the objections and the personal hearing to such person who would be adversely affected.42. In the instant Transferred Case, as the authority is only dealing with the issues at a draft stage and the applicants have ample opportunity to file their objections and are entitled to personal hearing as required under Rule 26 clause (4), the matter can be adjudicated before the statutory authority.Therefore, in view of the above, we are of the considered opinion that the apprehensions raised by the applicants at this stage are pre-mature. Admittedly, the applicants have filed their objections raising their grievance and they had also been given the personal hearing by the statutory authorities on all permissible, factual and legal grounds. The learned counsel appearing for the State/Authorities has submitted that in case the applicants are not satisfied and make fresh objections within 30 days from today, they would be provided a fresh opportunity of hearing. However, it is too early to anticipate as what order would be passed on their objections. In case, they are aggrieved by the order passed after hearing their objections, they have a statutory right to approach the appropriate forum challenging the same.43. In view of the above, we do not think it proper to decide the cases on merits at such a premature stage. More so, there is no reason to believe that the authorities would act arbitrarily and would not take into consideration the grievance raised by the