Case: Chairman,Indore Vikas Pradhikaram Vs. M/S. Pure Industrial Cock &amp;Chem.Ltd.&amp;Ors

Interpretation of the provisions of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, (No. 23 of 1973) (for short, the Act) is in question in these appeals which arise out of the judgments and orders dated 06.03.2007 passed by a Division Bench of the High Court of Madhya Pradesh in Writ Petition No. 9396 of 2006 and Writ Appeal No. 462 of 2006.3. Before we advert to the said question, we may notice the admitted fact of the matter.4. The said Act was enacted to make provisions for planning and development and use of land; to make better provision of the preparation of the development plans and zoning plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective; to constitute a Town & Country Planning Authority for proper implementation of town and country development plan; to provide for the development and administration of special areas through a Special Area Development Authority; to make provision for the compulsory acquisition of land required for the purposes connected with the said matters. The said Act came into force with effect from 16.04.1973.Chapter IV of the Act deals with planning areas and development plans. Section 13(1) empowers the State Government to constitute planning areas for the purposes of the said Act and define the limits thereof. Sub-section (2) of Section 13 empowers the State Government by notification, inter alia, to alter the limits of the planning area so as to include therein or exclude there from such areas, as may be specified in the notification; to amalgamate two or more planning areas so as to constitute one planning area; to divide any planning area into two more planning areas; and to declare that the whole or part of the area constituting the planning area shall cease to be a planning area or part thereof. Sub-section (3) of Section 13 of the Act provides for a non-obstante clause, in terms whereof, the local authority mentioned therein shall in relation to the planning areas from the date of the notification issued under sub-section (1) cease to exercise the powers, perform the functions and discharge the duties which the State Government or the Director is competent to exercise. Section 14 of the Act enables the Director to prepare an existing land use map and development plan. Section 15 enables the Director to carry out the survey and prepare an existing land use map and forthwith publish the same in the manner laid down therein. Once such a plan is published, no person is authorised to institute or change the use of any land or carry out any development of land for any purpose other than that indicated in the existing land use map without the permission in writing of the Director.On or about 13.02.1974, the State Government issued a notification under sub-section (1) of Section 13 of the Act constituting Indore Planning Area, the limits whereof were defined in the schedule appended thereto. Indisputably, it constituted only 37 villages. The villages Bicholi and Kanadia, with which we are concerned herein, were not included therein.20. The State Government in exercise of power conferred upon it under Section 38 of the Act issued a notification establishing the Appellant-Authority, namely, Indore Vikas Pradhikaran from 13.05.1977 in respect of the area specified in the notification dated 13.02.1974.21. On or about 30.03.1999, the State Government delegated its power under Sections 13 and 47A of the Act in favour of the District Planning Committee and it in exercise of said delegated power by a notification dated 13.11.2000 amended the planning area by adding 115 villages therein which included the said villages Bicholi and Kanadia. By a notification dated 28.06.2002, it, however, further amended the extent of planning area by deleting 62 villages therefrom. Bicholi and Kanadia villages were, however, retained in the said amended notification.22. Upon compliance of the usual statutory formalities, the appellant published a draft development plan on 27.06.2003. The said plan was in respect of Urban Development Scheme No.164. Objections and suggestions in respect thereof were called for. Allegedly, objections and suggestions having been filed; they were heard by the Development Planning Committee during the period between 25.08.2003 and 03.09.2003. By a resolution adopted in a meeting held on 20.08.2004 a decision in anticipation of approval of the Government under Section 50(1) of the Act was proposed, which included the lands of villages Bicholi and Kanadia, inter alia, for construction of a bye-pass road of 60 metres width. A declaration of intention to prepare a town development scheme in terms of sub-section (2) of Section 50 was issued on 24.08.2004. Indisputably, in terms of sub-section (3) of Section 50 of the Act, the draft town development scheme was to be prepared within a period of two years therefrom. On or about 02.12.2004, Respondent applied for sanction of development plans under Section 29(1) of the Act. We may, however, notice that on 04.01.2005, the said draft development plans were returned by the State of Madhya Pradesh in terms of Section 19(1) of the Act with a direction that the plans be prepared for the projected population as in the year 2021 and the same be placed before the Government for approval as soon as possible.23. The State of Madhya Pradesh, however, issued a notification in terms of sub-section (1) of Section 38 of the Act, inter alia, in respect of the villages in question, namely, Bicholi and Kanadia only on 28.10.2005. Appellant issued a notification on 18.05.2006 inviting objections in respect of the said scheme. A Draft Development Plan-2021 was published on 13.07.2006.Contentions of the writ petitioner-respondents :24. Respondents lands situated in villages Bicholi and Kanadia were within the respective jurisdictions of the Gram Panchayats constituted under the provisions of the Madhya Pradesh Gram Panchayat Act. The said panchayats in terms of the provisions of the Act were local authorities. They submitted applications for grant of building plan in the year 1990 and the same was sanctioned on or about 05.04.1991.25. Respondents, as noticed hereinbefore, applied for and obtained sanction in terms of the building bye-laws framed by the respective gram panchayats in 1991 for grant of development plans under Section 29(1) on 02.12.2004. The said applications were rejected by the Joint Director, Town and Country Planning in view of the purported publication of the plan under sub-section (2) of Section 50 of the Act. Respondents filed a writ petition against the said order, inter alia, praying for issuance of a writ or order in the nature of mandamus directing the said authority to sanction the site plan which had been submitted. The said writ petitions were dismissed by a learned Single Judge by an order dated 17.05.2006. Writ appeals were preferred thereagainst, which have been allowed by the Division Bench of the High Court by its judgment dated 06.03.2007.High Court Judgmentreason of the impugned judgment, the High Court struck down the declaration made under Section (2) of Section 50 of the Act, opining:(i) Unless a development plan for an area is published and comes into operation, a draft development scheme cannot be published by the Town and Country Development Authority under sub-section (2) of Section 50 of the Act.(ii) Such a town development scheme cannot by itself without a development plan for the area restrict the right of a person to use his property in the manner he likes.(iii) Although the notification issued by the Appellant-Authority had been constituted by the State Government only in respect of the area which was covered by the notification dated 13.02.1974, the draft development scheme prepared by it was ultra vires, so far as the said two villages are concerned, being beyond its territorial jurisdiction.

Reasoning:
On or about 13.02.1974, the State Government issued a notification under(1) of Section 13 of the Act constituting Indore Planning Area, the limits whereof were defined in the schedule appended thereto. Indisputably, it constituted only 37 villages. The villages Bicholi and Kanadia, with which we are concerned herein, were not included therein.20. The State Government in exercise of power conferred upon it under Section 38 of the Act issued a notification establishing thenamely, Indore Vikas Pradhikaran from 13.05.1977 in respect of the area specified in the notification dated 13.02.1974.21. On or about 30.03.1999, the State Government delegated its power under Sections 13 and 47A of the Act in favour of the District Planning Committee and it in exercise of said delegated power by a notification dated 13.11.2000 amended the planning area by adding 115 villages therein which included the said villages Bicholi and Kanadia. By a notification dated 28.06.2002, it, however, further amended the extent of planning area by deleting 62 villages therefrom. Bicholi and Kanadia villages were, however, retained in the said amended notification.22. Upon compliance of the usual statutory formalities, the appellant published a draft development plan on 27.06.2003. The said plan was in respect of Urban Development Scheme No.164. Objections and suggestions in respect thereof were called for. Allegedly, objections and suggestions having been filed; they were heard by the Development Planning Committee during the period between 25.08.2003 and 03.09.2003. By a resolution adopted in a meeting held on 20.08.2004 a decision in anticipation of approval of the Government under Section 50(1) of the Act was proposed, which included the lands of villages Bicholi and Kanadia, inter alia, for construction of aroad of 60 metres width. A declaration of intention to prepare a town development scheme in terms of(2) of Section 50 was issued on 24.08.2004. Indisputably, in terms of(3) of Section 50 of the Act, the draft town development scheme was to be prepared within a period of two years therefrom. On or about 02.12.2004, Respondent applied for sanction of development plans under Section 29(1) of the Act. We may, however, notice that on 04.01.2005, the said draft development plans were returned by the State of Madhya Pradesh in terms of Section 19(1) of the Act with a direction that the plans be prepared for the projected population as in the year 2021 and the same be placed before the Government for approval as soon as possible.Chapter V of the Act deals with the preparation, finalization, review and modifications of the zonal plan wherewith we are not concerned much in these appeals. Chapter VI of the Act provides for control of development and use of land. In terms of Section 24 of the Act, the Director is to control land use. Preparation of development plan, prohibition of development without permission and matters connected therewith and incidental thereto are also dealt with in Chapter VI. Chapter VII of the Act, however, provides for shift of control in respect of land use and development for the hands of the Director and, consequently of the State to the Town and Country Development Authority. Section 38 provides for establishment of Town and Country Development Authority.When a draft development plan is prepared, the same is subject to grant of approval and/ or modification thereof. We will deal with the matter at some details a little later but at this stage, we may notice that end use of the land is not frozen until a final sanction plan comes into being. A town planning scheme, as would appear from its definition contained in Section 2(4) of the Act, is prepared only for the purpose of implementation of a development plan. Yet again, we would deal with the question as to whether the same would bring within its sweep the draft development plan or only final development plan a little later, but it may be noticed that once a valid town planning scheme comes into force, indisputably, there may be freezing of land use as also freezing of development and, thus, a total embargo is placed except in such cases where the Director had granted permission. Section 53 of the Act, however, in the event a valid town planning scheme is made, places a total embargo both on land use as also the development. Even the Director is denuded of its power to issue any further permission. Existing land use, draft development plan and final development plan envisageexercise. In drafting or finalizing a zonal plan, a similar exercise is undertaken. In making a town development scheme, however, the process undertaken is aone inasmuch as an intention therefor is declared which entails serious consequences and, as noticed hereinbefore, by reason thereof, a total embargo is imposed both on land use as also the development. For the said purpose, a time limit within which a draft town planning scheme has to be finalized is provided but the same can be subject to modification by the State which ordinarily should be with a view to deal with the same in line with the final development plan.Town and country planning involving land development of the cities which are sought to be achieved through the process of land use, zoning plan and regulating building activities must receive due attention of all concerned. We are furthermore not oblivious of the fact that such planning involving highly complex cities depends upon scientific research, study and experience and, thus, deserves due reverence.47. Where, however, a scheme comes into force, although it may cause hardship to the individual owners as they may be prevented from making the most profitable use of their rights over property, having regard to the drastic consequences envisaged thereunder, the statute should be considered in such a manner as a result whereof greater hardship is not caused to the citizens than actually contemplated thereby. Whereas an attempt should be made to prevent unplanned and haphazard development but the same would not mean that the court would close its eyes to the blatant illegalities committed by the State and/or the statutory authorities in implementation thereof. Implementation of such land development as also building laws should be in consonance with public welfare and convenience. In United States of America zoning ordinances are enacted pursuant to the police power delegated by the State. Although in India the source of such power is not police power but if a zoning classification imposes unreasonable restrictions, it cannot be sustained. The public authority may have general considerations, safety or general welfare in mind, but the same would become irrelevant, as thereby statutory rights of a party cannot be taken away. The courts must make an endeavour to strike a balance between public interest on the one hand and protection of a constitutional right to hold property, on the other.While determining the questions involvedwe are not unmindful that the purpose and object of the town development scheme is a laudable one insofar as it purports to allocate areas covered by Scheme No. 164 for residential purposes and a bypass road of 70 feet wide is to be built along the eastern periphery of the area covered by the Scheme. The question, however, would be as to whether the development can be said to be a haphazard one or would completely destroy the purpose for which the land was to be reserved for planned development of the residential area.We do not see any force in the said argument. It is possible to enforce a draft development plan in a given case, but the statute must specifically provide for the same. But, a draft development plan which has not attained finality cannot be held to be determinative of the rights and obligations of the parties and, thus, it can never beIn Venkata Subamma and another v. Ramayya and others [AIR 1932 PC 92 ], it is stated that an Act should be interpreted having regard to its history, and the meaning given to a word cannot be read in a different way than what was interpreted in the earlier repealed section.78. Land use, development plan and zonal plan provided for the plan at macro level whereas the town planning scheme is at a micro level and, thus, would be subject to development plan. It is, therefore, difficult to comprehend that broad based macro level planning may not at all be in place when a town planning scheme isIt is furthermore aprinciple of law that a delegatee must exercise its jurisdiction within theof its delegation. If it could not exercise its delegated power for the purpose of creation of the appellant authority or extended its jurisdiction, in our opinion, it cannot be done by amendment of a notification issued under Section 13(1) of the Act.Admittedly, the villages in question had been included by the State in its notification issued on 28.10.2005. Prior thereto, the said villages having not been included within the area of operation of the appellant authority, any action taken either by way of its intention to frame a town planning scheme or otherwise shall be wholly illegal and without jurisdiction. It would render its act in relation to the said villages a nullity.108. It is, therefore, difficult for us to accept the submission of Mr. Venugopal and Mr. Gambhir that the notification dated 13.11.2000 subsumes in the notification dated 12.08.1977.109. For the reasons aforementioned, we do not have any other option but to uphold the impugned judgment of the Highdo not subscribe to the said view as it is nowthat that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned.113. In Director of Public Works v. Ho Po Sang [1961 AC 901 : (1961) 2 All ER 721], the Privy Council considered the said question having regard to the repealing provisions of the Landlord and Tenant Ordinance, 1947 as amended onIt was held that having regard to the repeal of SectionsE, when applications remained pending, no accrued or vested right was derivedsummary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of SectionsE, but merely conferred hope or expectation that thewould exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to theThe repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to thebut had not been determined by the Governor."[See also Lakshmi Amma v. Devassy [1970 KLT 204]114. The question again came up for consideration in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd. [(2004) 1 SCC 663] , wherein this Court categoricallycontext in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a legitimate or settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of itspower, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfilment due to change in law. The claim based on the alleged vested right or settled expectation cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled expectation has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a settled expectation or thevested right cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon.In Union of India v. Indian Charge Chrome [(1999) 7 SCC 314] , yet again this Courtapplication has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration.In S.B. International Ltd. v. Asstt. Director General of Foreign Trade [(1996) 2 SCC 439] , this Court repelled a contention that the authorities cannot take advantage of their own wrong viz. delay in issuing the advance licence,have mentioned hereinbefore that issuance of these licences is not a formality nor a mere ministerial function but that it requires due verification and formation of satisfaction as to compliance with all the relevantalso Kuldeep Singh v. Govt. NCT of Delhi [(2006) 5 SCC 702]