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D.S. Rege Vs. the Municipal Corporation of Greater Bombay and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberMisc. Petn. No. 112 of 1974
Judge
Reported inAIR1979Bom311
ActsBombay Municipal Corporation Act, 1888 - Sections 90, 91, 92, 291, 296, 296(1), 297 to 301, 301(1), 301(2), 345, 346, 351, 354 and 504; Constitution of India - Articles 14, 19, 19(1), 19(5) and 31; Bombay Municipal (Extension of Limits) Act, 1950; Bombay Municipal (Further Extension of Limits and Sch. BBA) (Amendment) Act, 1956; Land Acquisition Act - Sections 18, 23(2), 24(6) and 54; Madras City Improvement Trust Act, 1950; Nagpur Improvement Trust Act; Hyderabad Municipal Corporation Act, 1956; Bombay Town Planning Act; Bombay Provincial Municipal Corporation Act - Sections 390
AppellantD.S. Rege
RespondentThe Municipal Corporation of Greater Bombay and anr.
Appellant AdvocateM.M. Sakhardande, Adv.
Respondent AdvocateN.H. Gursahani, Govt. Pleader for ;Advocate-General, ;N.H. Gursahani, Govt. Pleader, ;K.K. Singhvi, ;N.V. Kamat, ;C.J. Sawant and ;R.P. Vyas, Advs.
DispositionOrdered accordingly
Excerpt:
a) the court ruled that the sub-sections (2) and (3) of sec. 298, section 299 and sub-sections (1) and (2) of section 301 of the bombay municipal corporation act, 1888 violated the provisions of article 14 of the constitution of india;(b) it was ruled that the provisions of sections 297 to 301 of the bombay municipal corporation act, 1888 did not violated article 19 (1) (f) of the constitution of india - - 7. i, now, therefore, request the sanction of corporation as required under section 297 (i) (b) of bombay municipal corporation act, to revise the regular line to 90.0' as shown in green on the accompanying plan to eet/&c/sub/21 and eet & c/sub-21-a dated 18-3-1968.'the works committee (suburbs) at its meeting held on 26th june 1968 recommended to the 1st respondent that the municipal.....order1. there are provisions in the bombay municipal corporation act, 1888, (hereinafter called 'the act') for the acquisition of lands for the prescription of the regular line of a public street. the principal question that i must answer in this petition is, do these provisions transgress the constitutional guarantee of equality?2. on or about 26th october 1967 a public notice was signed by the municipal commissioner intimating that, pursuant to the provisions of section 291 (b) of the act, it was proposed to prescribe a fresh line in substitution of the existing regular line of the public street known as linking road between turner road, bandra and juhu road, santacruz. it called for objections and representations in respect of the proposal. it appeared in the newspapers and was pasted.....
Judgment:
ORDER

1. There are provisions in the Bombay Municipal Corporation Act, 1888, (hereinafter called 'the Act') for the acquisition of lands for the prescription of the regular line of a public street. The principal question that I must answer in this petition is, do these provisions transgress the constitutional guarantee of equality?

2. On or about 26th October 1967 a public notice was signed by the Municipal Commissioner intimating that, pursuant to the provisions of Section 291 (b) of the Act, it was proposed to prescribe a fresh line in substitution of the existing regular line of the public street known as Linking Road between Turner Road, Bandra and Juhu Road, Santacruz. It called for objections and representations in respect of the proposal. It appeared in the newspapers and was pasted at several points along the said road. On 1st June 1968 the Municipal Commissioner wrote a letter tothe first respondents' Works Committee (Suburbs), the subject whereof was the revision of the regular line of the said road to 90 feet. The Municipal Commissioner stated in the said letter:--

'The existing 60' Vithalbhai Patel Road (Linking Road, Bandra) is proposed to be widened to 90' (27.4321 M) to give relief to the present traffic and cater to the needs of the future.' He went on to state that the present width of the said street would within the next two decades become inadequate. He then stated:--

'It is, therefore, confirmed that the road widening is most essential and expenditure incurred thereon would off-set the benefit the road users will accrue.

7. I, now, therefore, request the sanction of Corporation as required under Section 297 (i) (b) of Bombay Municipal Corporation Act, to revise the regular line to 90.0' as shown in green on the accompanying plan to EET/&C;/Sub/21 and EET & C/Sub-21-A dated 18-3-1968.'

The Works Committee (Suburbs) at its meeting held on 26th June 1968 recommended to the 1st respondent that the Municipal Commissioner's said Proposal be sanctioned. At its meeting held on 12th September, 1968 the 1st respondent confirmed the proceedings of the Works Committee (Suburbs) held on 26th June 1968. On 1st February 1974 the Petitioner was served with a notice under Section 299 of the Act. The notice stated that certain land (not occupied by a building) forming part of the petitioner's premises, being Plot No. 353 situate at Linking Road, lay within the regular line of the public street as prescribed by the Commissioner under Section 297 of the Act and gave notice under Section 299 of the Act that after the expiration of 7 clear days from the service of the said notice, the 1st respondent intended to take possession of that land. On 7th November, 1974 the petitioner approached this Hon'ble Court with this petition praying for a writ to quash the said Notice dated 1st February 1974 and to restrain the respondents from taking any action thereon.

3. The Provisions in the Act relating to the preservation of the regular line of public streets are Sections 297 to 301, They read as follows:--

'297. (1) The Commissioner may-

(a) prescribe a line on each side of any public street:--

(Provided that in the case of any public street in the suburbs the regular line of a public street operative under any law in force in any part of the suburbs on the day immediately preceding the date of coming into force of the Bombay Municipal (Extension of Limits) Act, 1950, (and in the case of any public street in the extended suburbs the regular line of a public street operative under any law in force in any part of the extended suburbs on the day immediately preceding the date of the coming into force of the Bombay Municipal (Further Extension of Limits and Sch. BBA (Amendment) Act, 1956) shall be deemed to be a line prescribed by the Commissioner under this clause.)

(b) from time to time, but subject in each case to his receiving the authority of the Corporation in that behalf, prescribe a fresh line in substitution for any line so prescribed, or for any part thereof provided that such authority shall not be accorded.

(i) unless, at least one month before the meeting of the corporation at which the matter is decided, public notice of the proposal has been given by the Commissioner by advertisement in local newspapers as well as in the (Official Gazette), and special notice thereof, signed by the Commissioner, has also been put up in the street or part of the street for which such fresh line is proposed to be prescribed, and

(ii) until the corporation have considered all objections to the said proposal made in writing and delivered at the office of the Municipal Secretary not less than three clear days before the day of such meeting.

(2) The line for the time being prescribed shall be called 'the regular line of the street.'

(3) No person shall construct any portion of any building within the regular line of the street except with the written permission of the Commissioner, who shall, in every case in which, he gives such permission, at the same time report his reasons in writing to the standing committee.

298. (1) If any part of a building abutting on a public street is within the regular line of such street the Commissioner may, whenever it is proposed-

(a) to rebuild such building or to take down such building to an extentexceeding one-half thereof above the ground level, such half to be measured in cubic feet; or

(b) to remove, reconstruct or make any addition to any portion of such building which is within the regular line of the street, in any order which he issues, under Section 345 or 346, concerning the rebuilding, alteration or repair of such building, require such building to be set back to the regular line of the street.

(2) When any building, or any part thereof within the regular line of a public street, falls down, or is burnt down, or is taken down whether under the provisions of Section 351 or 354 or otherwise, the Commissioner may at once take possession on behalf of the corporation of the portion of land within the regular line of the street theretofore occupied by the said building, and, if necessary, clear the same.

(3) Land acquired under this section shall thenceforward be deemed a part of the public street and shall vest, as such, in the corporation.

299. (1) If any land not vesting in the corporation, whether open or enclosed, lies within the regular line of a public street, and is not occupied by a building, or if a platform, verandah, step or some other structure external to a building abutting on a public street, or a portion of a platform, verandah, step or other such structure, is within the regular line of such street, the Commissioner may, after giving to the owner of the land or building not less than seven clear days' written notice of his intention to do, take possession on behalf of the corporation of the said land with its enclosing wall, hedge or fence, if any, or of the said platform, verandah, step or other such structure as aforesaid, or of the portion of the said platform, verandah, step or other such structure aforesaid which is within the regular line of the street, and, if necessary, clear the same and the land so acquired shall thenceforward be deemed a part of the public street.

(2) Provided that when the land or building is vested in (the Government) possession shall not be taken as aforesaid without the previous sanction of the Government concerned and, when the land or building is vested in any Corporation constituted by Royal Charter or by an Act of Parliament, (of theUnited Kingdom) or by an Indian law, possession shall not be taken as aforesaid without the previous sanction of the State Government.

300. (1) If any building which abuts on a public street is in rear of the regular line of such street the Commissioner may, whenever it is proposed.

(a) to rebuild such building, or

(b) to alter or repair such building in any manner that will involve the removal or re-erection of such building, or of the portion thereof which abuts on the said street, to an extent exceeding one-half of such building or portion thereof above the ground-level, such half to be measured in cubic feet, in any order which he issues, under Section 345 or 346, concerning the rebuilding, alteration or repair of such building, permit or, with the approval of the standing committee, require such building to be set forward to the regular line of the street.

(2) For the purposes of this section, a wall separating any premises from a public street shall be deemed to be a building; and it shall be deemed to be a sufficient compliance with a permission or requisition to set forward a building to the regular line of a street if a wall of such materials and dimensions as are approved by the Commissioner is erected along the said line, 301. (1) Compensation shall be paid by the Commissioner to the owner of any building or land acquired for a public street under Section 298 or 299, for any loss which such owner may sustain in consequence of his building or land being so acquired and for any expense incurred by such owner in consequence of the order made by the Commissioner under either of the said sections; provided that any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set back to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation.

(2) If, in consequence of any order to set forward a building made by the Commissioner under the last preceding section, the owner of such building sustains any loss or damage, compensation shall be paid to him by the Commissioner for such loss or damage,

(3) If the additional land which will be included in the premises of anyperson required or permitted under the last preceding section to set forward a building belongs to the corporation, the order or permission of the Commissioner to set forward the building shall be a sufficient conveyance to the said owner of the said land; and the price to be paid to the corporation by the said owner for such additional land and the other terms and conditions of the conveyance shall be set forth in the said order or permission.

(4) If, when the Commissioner requires a building to be set forward, the owner of the building is dissatisfied with the price fixed to be paid to the corporation or any of the other terms or conditions of the conveyance, the Commissioner shall upon the application of the said owner at any time within fifteen days after the said terms and conditions are communicated to him, refer the case for the determination of the Chief Judge of the Small Cause Court, whose decision thereupon shall be conclusive.'

4. Under the provisions of Section 296 of the Act the Commissioner has power to acquire land required for the purposes, inter alia of widening and extending public streets, Section 296 reads thus;--

'296. (1) The Commissioner may, subject to the provisions of Sections 90, 91 and 92-

(a) acquire any land required for the purpose of opening, widening, extending or otherwise improving any public street or of making any new public street, and the buildings, if any, standing upon such land:

(b) acquire in addition to the said land and the building if any, standing thereupon, all such land with the buildings, if any, standing thereupon, as it shall seem expedient for the corporation to acquire outside of the regular line, or of the intended regular line, of such street;

(c) lease, sell or otherwise dispose of any land or building purchased under clause (b).

(2) Any conveyance of land or of a building under clause (c) may comprise such conditions as the Commissioner thinks fit, as to the removal of the existing building, the description of new building to be erected, the period within which such new building shall be completed and other such matters.'

5. The principal argument which has been advanced before me on be-half of the petitioner is that there is no difference in the objectives of Sections 297 to 301 on the one hand and Section 296 on the other hand; that, at any rate, the objective of both these provisions is a municipal objective; that the Act discriminates in providing one procedure for acquisition of land for the regular line of the street and another procedure for the widening or extending the width of the street; that the Act permits the Commissioner to discriminate by resorting for the same objective to the one or the other procedure; that the procedure prescribed in Sections 297 to 301 is the more stringent procedure in so far as the affected owner is concerned; and that, therefore, the provisions of Sections 297-301 transgress Article 14 of the Constitution.

6. It would be well to consider first whether there is any real difference in the objectives of the provisions in Sections 297 to 301 of the Act on the one hand and the provisions in Section 296 on the other hand. The question differently put would be: what is involved in prescribing the regular line of the street. In the judgment of a Division Bench of this Court in the case of Municipal Commr. v. Mancherji Pestonji Choksey, : (1911)13BOMLR1130 , Scott. C. J. said (at p. 1134) that the substitution of fresh regular line for a street or part of the street under the said provisions would in all probability in a progressive city like Bombay have for its object the widening of the street. It is clear that both sets of provisions may be employed with the object of road widening.

7. The next issue that arises is: would any prejudice be caused to a citizen whose land is acquired under the provisions of Sections 297 to 301 of the Act as compared to what would happen if it were acquired under the provisions of Section 296? It is clear that for the acquisition of land under the provisions of Section 296 the provisions of the Land Acquisition Act would be employed.

8. Mr. Sakhardande, learned Counsel for the petitioner, drew my attention to the provisions of Sections 297 to 301 on the one hand and Section 24(6) of the Land Acquisition Act on the other. He pointed out that under the provisions of Section 301 any increase or decrease in the value of the remain-der of the property of which the land acquired formed a part, likely to accrue from the set-back to the regular fine of the street had to be taken into consideration and allowed for in determining compensation. On the other hand, in determining compensation under Section 24(6) of the Land Acquisition Act, any increase in the value of the remaining land of the owner was not to be taken into consideration. Mr. Sakhardande contended that prejudice would thus be caused by resort to the provisions of Section 297 to Section 301. Mr. Singhvi, learned Counsel for the 1st respondent, drew my attention to a judgment of a Division Bench of this Court (unreported) in First Appeal No. 386 of 1968 (and First Appeals Nos. 387 to 395 of 1968), Municipal Corporation of Greater Bombay v. Central Bank Executor and Trustee Co, Ltd., in which the words 'any loss which such owner may sustain' in Section 301 were interpreted to mean a loss of property with all its concomitants; the Court held that the owner was entitled to full indemnification, being not only the value of the land acquired but also of the benefits that may have existed by ownership of the land acquired in relation to the value of his property. In the light of that Judgment, I cannot hold that any prejudice would be caused to the owner by reason of resort to the provisions of Ss. 297 to 301.

9. The next point made by Mr. Sakhardande was that under the provisions of Section 23(2) of the Land Acquisition Act the owner of the land acquired was entitled to an additional sum of 15 p. c. upon the value of the land acquired as solatium whereas there is no provision for any solatium under Sections 297 to 301. This is undoubtedly an aspect prejudicial to the interest of the owner whose land is acquired under the provisions of Ss. 297 to 301 and has, as will be set out hereafter, been held to be so by the Supreme Court.

10. Mr. Sakhardande drew my attention to the fact that a personal hearing was imperative before land was acquired under the provisions of the Land Acquisition Act and to the judgment of the Supreme Court in the case of Farid Ahmed v. Ahmedabad Municipality. : [1977]1SCR71 , where the Court held that it was mandatorily pro-vided for. Mr. Sakhardande contended that the fact that there was no provision for a personal hearing before land was acquired under the provisions of Sections 297 to 301 was prejudicial to the rights of the owner whose land was acquired under these provisions. There is some substance in this contention; the right to a personal hearing before land is acquired would enable owner to place his objections more fully before the acquiring authority.

11. Mr. Sakhardande's next point was that there was no provision in the Act for judicial determination of the compensation to be awarded for land acquired under the provisions of Sections 297 to 301 whereas, under the provisions of Section 18 of the Land Acquisition Act, a reference to Court upon the amount of compensation was contemplated and an appeal therefrom lay under the provisions of Section 54 of the Land Acquisition Act. It was Mr. Sakhardande's contention that the words 'any person' in Section 504 applied only to a person other than the Municipal Commissioner and that Section 504 provided for determination by the Chief Judge of the Small Causes Court of the compensation to be paid only when it was payable by a person other than the Municipal Commissioner. It was contended by Mr. Singhvi on behalf of the 1st respondent that there was no reason to read the words 'any person' in Section 504 in a narrow sense and that, in fact, applications for determination of compensation payable by the Municipal Commissioner were entertained by the Chief Judge of the Small Causes Court under the provisions of Section 504. From the unreported judgment of the Division Bench to which I have already referred it is clear that the appeals there decided arose out of a common judgment delivered by the Chief Judge of the Small Causes Court upon applications made to him under Section 504 for determining the compensation payable by the Municipal Commissioner in respect of lands acquired under the provisions of Sections 297 to 301, In my view, the words 'any person' in Section 504 must be read in their ordinary and broad meaning and do, therefore, include within their ambit the Municipal Commissioner. Judicial determination of the compensation awarded to the affected owner under the provisions of Sections 297 to 301 is, therefore, provid-ed for under the Act and there would be no prejudice to the owner on that account,

12. On a balance, I find that the owner whose land is acquired under the provisions of Section 297 to 301 is prejudiced as compared to what would have happened had the land been acquired under the provisions of Section 296,

13. The next issue to determine is whether or not the provisions of Sections 297 to 301 infringe the guarantee of equality under Article 14 of the Constitution. Mr. Sakhardande invited my attention to decisions of the Supreme Court wherein the impact of Article 14 upon various statutory provisions for compulsory acquisition of land for public purposes has been considered.

14. In the judgment of the Supreme Court in Vajravelu v. Spl. Dy. Collector : [1965]1SCR614 , the Court was concerned with determining whether an Act passed to amend the Land Acquisition Act in the State of Madras for the purposes of enabling the State to ac-quire land for housing schemes contravened Article 14 of the Constitution. The Court observed that under Article 14 of the Constitution equality before the law and equal protection of the law could not be denied but this did not preclude the legislature from making a reasonable classification for the purpose of legislation. That classification was required to pass two tests, namely, that it must be founded on an intelligible differentia which distinguished persons and things left out of the group, and it must a rational relation to the object sought to be achieved. To ascertain whether the tests were satisfied, three questions were to be posed: (i) What was the object of the Act? (ii) What were the differences between persons whose lands were acquired under the Act and those whose lands were acquired for other purposes, or between the lands acquired? (iii) Whether these differences had a reasonable relation to the Acts' object? Answering these questions in the context of the Act before it, the Court said:--

'...Now what are the differences, between persons owning lands in the Madras City or between the lands acquired which have a reasonable relation to the said object. It is suggested that the differences between people owning lands rested on the extent,quality and the suitability of the lands acquired for the said object. The differences based upon the said criteria have no relevance to the object of the Amending Act. To illustrate, the extent of the lands depends upon the magnitude of the scheme undertaken by the State. A large extent of land may be acquired for a university or for a network of hospitals under the provisions of the principal Act and also for a housing scheme under the Amending Act. So too, if the housing scheme is a limited one, the land acquired may not be as big as that required for a big university, If waste land is good for a housing scheme under the Amending Act, it will equally be suitable for a hospital or a school for which the said land may be acquired under the Principal Act. Nor the financial position or the number of persons owning the land has any relevance, for in both the cases land can be acquired from rich or poor, from one individual or from a number of persons. Out of adjacent lands of the same quality and value, one may be acquired for a housing scheme under the Amending Act and the other for a hospital under the Principal Act; out of two adjacent plots belonging to the same individual and of the same quality and value, one may be acquired under the Principal Act and the other under the Amending Act, From whatever aspect the matter is looked at the alleged differences have no reasonable relation to the object sought to be achieved. It is said that the object of the Amending Act in itself may project the differences in the lands sought to be acquired under the two Acts. This argument puts the cart before the horse. It is one thing to say that the existing differences between persons and properties have a reasonable relation to the object sought to be achieved and it is totally a different thing to say that the object of the Act itself created the differences. Assuming that the said proposition is sound, we cannot discover any differences in the people owning lands or in the lands on the basis of the object. The object is to acquire lands for housing schemes at a low price. For achieving that object, any land falling in any of the said categories can be acquired under the Amending Act. So too, for a public purpose any such land can be acquired under the Principal Act. We, there-fore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principle of reasonable classification. We, therefore, hold that the Amending Act clearly infringes Article 14 of the Constitution and is void.'

15. In Balammal v. State of Madras, : [1969]1SCR90 , the Court held that the Madras City Improvement Trust Act, 1950, in so far as it sought to deprive affected owners of the statutory addition of solatium to the market value of their lands under the provisions of Section 23(2) of the Land Acquisition Act, was violative of the equality clause of the Constitution and void. The Court stated:--

'A clear case of discrimination which infringes the guarantee of equal protection of the law arises and the provision which is more prejudicial to the owners of the land which are compulsorily acquired must on the decisions of this Court be deemed invalid.'

16. In Nagpur Improvement Trusty, Vithal Rao, AIR 1973 SC 689, the Court was concerned with the validity of the Nagpur Improvement Trust Act. When land was acquired under the provisions of that Act compensation was required to be determined according to the use to which the land was put at that date and no solatium was required to be paid. The Court concluded that the owner whose land was acquired under the Nagpur Improvement Trust Act would suffer as compared to what would happen if the same land was acquired under the provisions of the Land Acquisition Act. The Court stated that it was clear that the State could acquire lands for housing schemes under the Land Acquisition Act or under the Nagpur Improvement Trust Act and, this being so, it enabled the State to discriminate between the owner equally situated from another owner. The Court considered whether classification could be made on the basis of public purpose and held that ordinarily classification based on public purpose was not permissible under Article 14 for the purposes of determining the compensation payable. The Court stated that the existence of two Acts enabled the State to give one owner different treatment from another owner equally situated and entitled the owner discriminated against to claim protection of Article 14. TheCourt observed that it was impermissible for the State to have one law for acquiring lands for hospitals and another for acquiring lands for schools; one law for acquiring lands for clearing slums and another for acquiring lands for Government buildings; one law for acquiring lands in New Delhi and another for acquiring lands in Old Delhi. The Court struck down the provisions of the Nagpur Improvement Trust Act.

17. In the case of Om Prakash v. State of U. P. : [1974]2SCR731 , the Supreme Court affirmed the judgment in the Nagpur Improvement Trust's case.

18. In the case of Satwant Singh v. A. P. O. New Delhi : [1967]3SCR525 , it was held by the Supreme Court that a law which discriminates or which enables an authority to discriminate between persons without just classification is void.

19. Mr. Sakhardande then referred me to a judgment in the Andhra Pradesh High Court in Sriniwas Pitti v. Municipal Corporation of Hyderabad, ILR (1972) A P 214. Under consideration were substantially identical provisions of the Hyderabad Municipal Corporation Act, 1956, providing for acquisition of lands for the regular line of a street. It was contended that the Hyderabad Municipal Corporation Act made two provisions for the acquisition of lands necessary for the widening of roads and that the two provisions so made applicable were not in pari materia, the one made under the set of provisions relating to the regular line of a street being more stringent than those for the extending or widening of a street The Court held that the Hyderabad Act did not lay down specific cases in which the Municipal Commissioner had necessarily to take action under the provision equivalent to Section 296 of the Act before me; the result was that it was left entirely to the sweet will and pleasure of the Commissioner either to proceed under the one set of provisions or the other for the acquisition of lands required to the widening of roads. The Court held that there was no intelligible differentia for distinguishing between lands acquired for widening the street and lands falling within the regular line of the street, in both cases the lands being required for the street. TheCourt also found that the differentia had no rational relation to the object sought to be achieved and that there was no nexus between the basis of classification and the object. The Court concluded that the provisions in the Hyderabad Act equivalent to Section 301 (1) infringed the provisions of Article 14 of the Constitution and were void.

20. Mr. Singhvi on behalf of the 1st respondent contended that the Municipal Commissioner had no option but to proceed under the provisions of Section 297 to 301 when widening a street from one end to the other, that is to say, according to him, when prescribing the regular line of a street. He submitted that in those circumstances recourse by the Commissioner to the provisions of Section 296 of the Act would be mala fide. I cannot agree. In my view, as earlier set out, the objective of both sets of provisions is to acquire lands for a public street. Both sets of provisions can be applied when the object is to widen a public street. There is no good reason why the Commissioner cannot validly resort to the provisions of Section 296 when a public street is required to be widened from end to end. There are, as I see it, no guidelines as to when one set of provisions must be implemented and when the other.

21. Mr. Singhvi drew my attention to the judgment of the Supreme Court in the case of State of Gujarat v. Shantilal, : [1969]3SCR341 . In this casa the Court was concerned in determining whether the provisions of the Bombay Town Planning Act, in so far as they related to the compulsory acquisition of land for town planning purposes, infringed Article 14 of the Constitution. What was contended was that if the lands were acquired under the provisions of the Land Acquisition Act, the compensation payable to the owner would be more substantial than that payable to the owner under the provisions of the Town Planning Act and that there was an option to acquire land either under that Act or under the Land Acquisition Act. The Court held that land required for the purposes of a town planning scheme could not be acquired otherwise than under the relevant Town Planning Act. Mr. Singhvi relied upon this authority to submit that since there was no option to the Commissioner but to resort to the provisions of Sections 297 to 301 when pre-scribing the regular line of the street, there was no question of comparison with the provisions of Section 296 or of the Land Acquisition Act, and, therefore, no question of discrimination. I have already held that there is an uncontrolled option given to the Commissioner under the Act to resort to either the provisions of Sections 297 to 301 or the provisions of Section 296 when acquiring lands for road widening. Apart therefrom, in Shantilal Mangaldas's case, the procedure challenged was under a particular statute for a particular purpose, namely, the Town Planning Act for a town planning scheme, contrasted with the general procedure for acquisition of lands, that is under the Land Acquisition Act. The case before me is not such a ease. In the case before me, the same Act provides for the same objective two sets of procedures, either of which may be resorted to, and one of which is more stringent than the other, The judgment in Shantilal Mangaldas's case does not aid the respondents.

22. Mr. Singhvi then referred me to the judgment of the Supreme Court in the case of M. Chhaganlal v. Greater Bombay Municipality, : [1975]1SCR1 . In this judgment, the Supreme Court set the seal of disapproval upon their judgment in the Northern India Caterers' case : [1967]3SCR399 and held that where a statute providing for a. more drastic procedure different from the ordinary procedure covered the whole field covered by the ordinary procedure, without any guidelines as to the class of cases in which either procedure is to be resorted to, the statute would be hit by Article 14; but, if necessary guidelines could be inferred, the statute would be saved from being so hit. It was Mr. Singhvi's contention that the fact that for the purposes of road-widening either the procedures of Sections 297 to 301 of the Act or the more general procedure of the Land Acquisition Act was available to the Commissioner, would not vitiate the procedure under Sections 297 to 301. The principal contention of the petitioner before me has been that the provisions of Sections 297 to 301 do not satisfy the requirements of Article 14 of the Constitution. In the judgment in Maganlal Chhaganlal's case, the validity of the classification was not disputed. That judgment deals with a special, more drastic provision as compared to thegeneral law. That was not a case where, as in the instant case, the same Act provides for two procedures for the same object without providing any guidelines as to when the one or the other procedure is to be employed.

23. The object of both sets of provisions in the Act, viz., Sections 297 to 301 on the one hand and Section 296 on the other hand, is the same, being the compulsory acquisition of land for a public street. There is no difference between the owners whose lands are to be acquired under the provisions of Sections 297 to 301 for the prescription of regular line of the street and the owners whose lands are to be acquired under Section 296 for widening or extending a public street There being no such: difference, it cannot be held to bear a reasonable relation to the object to be achieved. To employ the phraseology of the judgment in Vajravelu's case, there is no classification founded on an Intelligible differentia which distinguishes the owners of lands left out by the pro-visions of Sections 297 to 301. In the result, the provisions of Sections 297 to 301 of the Act, in so far as they relate to the compulsory acquisition of land and the compensation to be paid therefor, contravene the guarantee given by Article 14 of the Constitution of India and are void,

24. Mr. Sakhardande also challenged the provisions of Sections 297 to 301 as being violative of Articles 19 and 31 of the Constitution of India. It was contended by him that Section 301 does not set out the principles upon which compensation is to be determined nor does it set out the manner of payment, He contended that the same provision violated the provisions of Article 19(1)(f) because compensation was determined without notice to the owner. Mr. Singhvi drew my attention to the judgment in Ahmedabad Municipality v. State of Gujarat : [1973]1SCR1 , where virtually identical provisions in the Bombay Provincial Municipal Corporation Act relating to the regular line of street were challenged as being violative of Article 31. The Supreme Court held that every kind of loss was required to be compensated for and the involvement of civil courts in determining compensation imported judicial norms. The Court referred to Section 390 of that Act -- there is no parallel pro-vision in the Act before me-- to show that the Commissioner was required to hold an appropriate enquiry before determining the amount of compensation.

25. In the instant case, in view of the aforesaid Supreme Court judgment and the unreported judgment of the Division Bench of this Court referred to earlier, it must be concluded that full indemnification is available to the affected owner under the provisions of Section 301. I have already indicated my view that under the provisions of Section 504 the Chief Judge, Small Causes Court, is entitled to determine the compensation payable for lands acquired under Sections 297 to 301 and, that, therefore, such compensation must be determined by adopting judicial norms. There is no provision akin to Section 390 of the Bombay Provincial Municipal Corporations Act in the Act before me so that there is no specific provision that the Commissioner must hold an appropriate enquiry before determining compensation; but, inasmuch as compensation has to be determined by adopting judicial norms and must provide full indemnification to the affected owner, the requirement to institute an appropriate enquiry for determining compensation must be deemed to be implicit in the provisions of the Act. I, therefore, hold that the provisions of Sections 297 to 301 do not infringe Article 31 of the Constitution of India. The same reasoning should suffice for holding that Article 19(1)(f) of the Constitution is also not infringed. There is also the provision -- that the operation of any existing law affecting Article 19(1)(f) is saved by Article 19(5). I find Mr. Sakhardande's contention that, because the Act did not extend to the suburbs on the date on which the Constitution came into effect, it cannot be said to be an existing law, without warrant.

26. The conclusion is that Sub-sections (2) and (3) of Section 298, Section 299 and Sub-sections (1) and (2) of Section 301 infringe the provisions of Article 14 of the Constitution and are void. The petition is made absolute in terms of prayers (a) and (b). The 1st respondent do pay to the petitioner the costs of the petition.

27. Ordered accordingly


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