Case: Prakash Amichand Shah Vs. State of Gujarat

On June 26, 1965 the Surat Municipal Corporation, then called Surat Borough Municipality, declared its intention to make a town planning scheme under section 22 of the Bombay Town Planning Act, 1954 (hereinafter referred as the Act). This was Town Planning Scheme Su rat No. 8 (Umarwada). On July 4, 1967 a draft scheme was published which included among other lands an area admeasuring 1, 37, 961 sq. meters of which appellant as Karta of a Hindu undivided family was the lessee. On May 10, 1968 Government of Gujarat granted sanction to the draft scheme. Before the Town Planning Officer the appellant claimed compensation for deprivation of his right in the land at Rs. 50 per sq. yd. By his order made on November 4, 1971 the Town Planning Officer awarded compensation to the appellant at the rate of Rs. 2.40 p. per sq. mt.; the total compensation awarded was Rs. 3, 31, 455. Not satisfied with the decision of the Town Planning Officer the appellant preferred an appeal. Section 34 read with section 32(1) of the Act provides an appeal from the decision of the Town Planning Officer on certain specified matters to a Board of Appeal. Before the Board of Appeal the appellant reduced his claim to Rs. 9.50 p. per sq. mt. The appellants grievance was that the compensation awarded was inadequate and further that the apportionment of compensation between the lessor and the lessee was not proper. He also questioned the propriety of reserving such a large area of land for the scheme. The Board of Appeal held that the appeal was not maintainable as the Act did not provide an appeal from a decision of the Town Planning Officer on matters dealt with by him in his order dated November 4, 1971. The appellant then challenged the order of the Board of Appeal before the Gujarat High Court by filing a writ petition in which certain provisions of the Act were also challenged as unconstitutional and it was claimed that the town planning scheme was consequently invali d. The Gujarat High Court dismissed the writ petition agreeing with the Board of Appeal that the appeal was incompetent.

Reasoning: It seems obvious that the property or right which is injuriously affected by the making of a town planning scheme is a property or right other than that acquired fo r the purposes of the scheme. The property or right affected remains with the owner who is entitled to compensation for such injurious affection. When under the Act a plot of land is taken for the purposes of a town planning scheme, it cannot be suggested that land itself is injuriously affected; such a view is unsupportable both as a matter of language and having regard to the scheme of the Act. On behalf of the appellant it was urged that clause (xiii) would cover the case of the appellant if only we read a few words in that clause and that we should do so to avoid injustice being done to the appellant and the owners of land similarly situated. That we are afraid is not possible. We find no compelling reason for restructuring that clause, and taking acquisition of land to mean injurious affection of the land acquired would be inconsistent with the entire scheme of the Act. We may refer to clause fourthly of section 23 (1) ofthe land Acquisition Act, 1894 which requires the court to take into consideration in determining the amount of compensation to be awarded for land acquired under that Act, the damage sustained by the "person interested" "by reason of the acquisition injuriously affecting his other property". The expression "person interested" as defined in section 3 of the Land Acquisition Act means all persons claiming an interest in compensation to be made on account of the acquisition of land under that Act. It is made clear in clause fourthly that the damage is for injurious affection of some property other than the land acquired. The sense in which the expression injurious affection is used in section 23 (1) of the Land Acquisition Ac t is the generally accepted meaning of that expression and we find nothing in the Act concerned in this case that suggests that it should be construedt was then argued that if neither clause (viii) nor clause (xiii) was applicable, then there was no clause in section 32 (1) of the Act that covers the appellants case. The contention is not correct. The owner of an original plot who is not provided with a plot in the final scheme gets his right to compensation from section 71 o f the Act which says that the net amount of loss shall be payable to him by "the local authority in cash or in such other way as may be agreed upon by the parties". The principle for determining the compensation is the same whether an owner of land is given a reconstituted plot or not; compensation is payable on the basis of the market value of the plot at the date of declaration of the intention to make a scheme. In the appellants case it would be the value of the original plot and not the final plot. In determining the difference between the total of the values of the original plots and the total of the values of the plots included in the final scheme, the Town Planning Officer under section 32 (1) (iii) has to find out the market value of each of the original plots at the date of the declaration of intention to make a scheme as provided in section 64 (1) (f). Thus the Act contains the necessary provisions for estimating the compensation payable to an owner of land who has not been given a reconstituted plot.