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The State of Bombay Vs. Davalbhai Naranbhai Patel - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 07 of 1954
Judge
Reported in(1959)61BOMLR1247
AppellantThe State of Bombay
RespondentDavalbhai Naranbhai Patel
Excerpt:
bombay town planning act (i of 1915), sections 14, 50, 51, 51-a-land acquisition act (i of 1894), section 6-bombay municipal boroughs act (bom. xviii of 1925), sections 63, 66-land included in sanctioned draft town planning scheme awaiting final scheme-whether such land can be acquired by government under section 6 of land acquisition act-word 'land' in section 51 of bom. act i of 1915 whether covers land within town planning area-interpretation of statute.;a land included in a sanctioned draft town planning scheme under the bombay town planning act, 1915, can be acquired by government under section 6 of the land acquisition act, 1894.;the word 'land' used in section 51 of the bombay town planning act, 1915, covers land situated within a town planning area or outside it.;if a statute is..........is whether acquisition of the suit land was bad on the ground that it was included in the draft town planning scheme. the submission of mr. gupte, learned counsel for the plaintiff, was that once a land was included in a draft scheme, the power of acquiring it under section 6 of the land acquisition act was lost to the state government. his second submission was that though, under section 6 of the land acquisition act, the government had power to acquire land needed for a public purpose, before such land could be acquired, the land must be capable of being so acquired. he argued that, if on account of the existence of another law, a land was rendered incapable of acquisition, then, the power of the acquiring authority to acquire the land was lost. he contended that the town planning.....
Judgment:

Miabhoy, J.

1. [His Lordship after stating the facts, proceeded]. The main point, which arises for consideration in the appeal is whether acquisition of the suit land was bad on the ground that it was included in the Draft Town Planning Scheme. The submission of Mr. Gupte, learned Counsel for the plaintiff, was that once a land was included in a draft scheme, the power of acquiring it under Section 6 of the Land Acquisition Act was lost to the State Government. His second submission was that though, under Section 6 of the Land Acquisition Act, the Government had power to acquire land needed for a public purpose, before such land could be acquired, the land must be capable of being so acquired. He argued that, if on account of the existence of another law, a land was rendered incapable of acquisition, then, the power of the acquiring authority to acquire the land was lost. He contended that the Town Planning Act of 19.15 contained a number of provisions which showed that once land became the subject-matter of a town planning scheme, then, it could not be acquired under the Land Acquisition Act. It is, therefore, necessary, first, to examine the sections of the Town Planning Act on which Mr. Gupte relied for contending that the Act debarred the acquiring authority from exercising the power conferred on it by Section 6 of the Land Acquisition Act and which provisions, according to him, remove the suit land from the category of lands capable of being acquired. Section 3 of the Town Planning Act provides that a town planning scheme may make provision for certain matters, which are mentioned in that section. Then Section 8 of the 'Act provides that a town planning scheme may be made in accordance with the provisions of the Act in respect of any land, which is in course of development or which is likely to be used for building purposes. Sub-section (i) of Section 9 provides that the local authority may by resolution, declare its intention to make a scheme in respect of the whole or any part of such land and of any land which is in the vicinity of such land. Sub-section (2) of Section 9 provides that, within twenty-one days from the date of such declaration, the local authority shall despatch a copy of the resolution to the Government for publication in the official gazette and, then, shall apply to the State Government for sanction for the making of such scheme. Then, Sub-section (6) of Section 9 provides that, after the receipt of such application and after making such inquiry as it may think fit, the State Government may by notification in the official gazette, either give sanction to make such scheme with or without modifications and subject to such conditions as it may think fit to impose or refuse to give sanction. Section 10 provides that, within 12 months from the date of the notification, sanctioning the town planning scheme, the local authority shall, in consulation with the owners, prepare and publish, in the prescribed manner, a draft scheme for the area in respect of which sanction has been given. Section 11 mentions what the contents of the draft scheme shall be. Then Section 15 imposes certain restrictions on the owners of lands situated within the town planning area. It provides that, after the declaration of intention to make a scheme no person shall, within the area included in the scheme, erect or proceed with any building or work unless such person has applied for and obtained the necessary permission which shall be contained in a commencement certificate granted by the local authority in the form prescribed. Section 14 empowers Government to grant or withhold sanction for the draft scheme. Section 29 of the Act provides that, after a draft scheme has been sanctioned, the State Government shall appoint an arbitrator. Then Section 30 provides that, in accordance with the prescribed procedure, the arbitrator shall perform certain duties, which are mentioned in Sub-sections (1) to (10). Mr. Gupte especially drew our attention to the two provisos to Sub-section (10) of Section 30. The first proviso empowers the arbitrator to make variations from the draft scheme, but, enacts that any variation, estimated by the arbitrator to involve an increase of ten per cent, in the costs of the scheme, as described in Section 16, shall require the sanction of the Provincial Government. The second proviso, among other things, provides for an appeal to the Provincial Government from a decision of the arbitrator varying the scheme substantially. Then Section 31 provides that, except in certain matters, arising from some clauses of Section 30 and, subject to the provisos contained in Clause (10) of Section 30, every decision of the arbitrator shall be final and conclusive and binding on all persons. Then there are provisions for the appointment of a Tribunal. Then Section 40 provides that, after the Tribunal has decided all matters, which it is entitled to decide, the Government may, by notification in the official gazette, sanction the final scheme or refuse to give such sanction, provided that, in sanctioning the scheme, the State Government may make such modifications as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or informality. Mr. Gupte's contention is that, if all these provisions are read as a whole, then, the legislative intent is quite clear that once a draft scheme is sanctioned by the Government, the only authority which has got the power of making any variation in the scheme is the arbitrator alone and nobody else.

2. Mr. Gupte's contention was that though the Act confers on the Government power to modify or vary a scheme, before it is sanctioned under Section 14(2), no such power is conferred on it after such sanction is given and that the power to vary or modify a scheme thereafter vests only in the arbitrator, the power of the Government being restricted only to sanction a variation made by the arbitrator involving increase in cost of ten per cent, or of hearing an appeal from a decision of the arbitrator to vary a scheme substantially. It is not necessary for us to examine the Act with a view to ascertain as to what powers the Government possess after a final scheme is sanctioned, because, the facts of the present case do not demand an examination of the Act from this point of view. In this case, we are only concerned with determining as to what is the effect of a sanctioned draft scheme which is awaiting preparation of a final scheme. Alter a draft scheme has been sanctioned, the Act provides by Section 29 that an arbitrator shall be appointed. The duties of the arbitrator are mentioned in Sub-section (1) of Section 30 of the Act. It is true, that, so far as the matters provided for in this sub-section are concerned, duty is cast upon the arbitrator only and the Government has neither any power nor is any duty cast on it in connection with the draft scheme, at this stage, except those which are mentioned in the provisos to Sub-section (10) of Section 30. The first proviso, as already mentioned, provides that, in case there is a variation which involves an increase in costs of ten per cent., then, the sanction of the Provincial Government is necessary. The second proviso provides for an appeal to the Provincial Government. Section 31 provides that, except in these two matters, the decision of the arbitrator, except in regard to matters mentioned in Clauses (3A), (3B), (3C), (4), (5), (6) and (9) of Section 30, shall be final and conclusive. Therefore, Mr. Gupte is right in his submission that, after a draft scheme is sanctioned, the matter is mostly in the hands of the arbitrator and it is that Officer whose duty it is to consider and sanction a variation of the scheme and the Government has no power of variation, their powers being confined to sanctioning variation made by an arbitrator or hearing an appeal therefrom. But this conclusion does not touch the point which requires to be decided in the appeal. The question that requires to be considered is whether these provisions of the Act either curtail the powers of the acquiring authority to acquire land under Section 6 of the Land Acquisition Act and/or they affect the land situated in a scheme area in such a way that it ceases to be the subject-matter of acquisition. Mr. Gupte began his argument by submitting that Section 6 of the Land Acquisition Act contains within it a limitation as to the kind of land which can be acquired by the Government. We are not in agreement with this submission of Mr. Gupte. In our opinion, Section 6 of the Land Acquisition Act covers all lands and does not exclude any land. Of course, it is open to the Legislature to provide that certain types of land shall not be acquired. If any such provision is made, then, it would be binding, subject to such objections which could be raised under the law of the land. However, an examination of the provisions of the Bombay Town Planning Act clearly reveals that they do not deal with the question of transfer of lands before a final scheme is sanctioned. It is only after a final scheme is prepared that, under Section 41 of the Town Planning Act, all rights in original plots which have been reconstituted stand determined and the reconstituted plots become subject to the rights settled by the arbitrator. But, before a final scheme is sanctioned, there is nothing in the provisions of the Act which deal with the subject of transfer of lands. The main object of the Land Acquisition Act is to transfer ownership of land from private persons to Government or local authority or company free from all encumbrances. We are unable to find anything in the Town Planning Act nor is our attention been drawn to any provision therein, which would justify the submission that the power of the Government to acquire land was taken away the moment a draft scheme was sanctioned.

3. Mr. Gupte's further contention is that, when a draft scheme is sanctioned, then, the land, situated in the scheme area, becomes subject to certain restrictions and he submits that the acquisition of such land will interfere with such restrictions. We cannot agree with this submission also. Under Section 15 of the Town Planning Act, the restrictions are not absolute, but qualified. Under that section, it is true that all persons are prohibited from erecting or proceeding with any building or working or doing some other things on the lands situated within a Town Planning Area. But the section also makes it clear that such erection or other things can be made by obtaining a commencement certificate from the local authority in the prescribed form.

4. The main argument of Mr. Gupte which requires examination is that acquisition of land for a public purpose would vary a draft scheme and such a variation cannot be effected by the Government by the use of the machinery of acquisition. Under Section 30(1), a duty has been cast upon the arbitrator to demarcate areas allotted to, or reserved for, public or municipal purposes. If he so demarcates, then, his decision will become final, conclusive and binding under Section 31, But, in our opinion, this does not mean that, during the pendency of the draft scheme and before the final scheme is sanctioned, the Government is totally prevented from acquiring any land for a purpose other than that for which it may have been assigned in the draft scheme. All that these provisions mean is that the Government would have to approach the arbitrator and obtain his sanction for using the land for the intended purpose. But that does not take away the lands situated in a town planning scheme from the category of lands which are liable to be acquired under Section 6 of the Land Acquisition Act. In the present case, the correspondence shows that the local authority had consulted the arbitrator in the matter of the acquisition of this land and the arbitrator had given his approval. But, we do not propose to rest our decision on this approval. We do not propose to do so because the approval appears to have been obtained in private correspondence and not under the machinery devised by the Act. We propose to rest our judgment on the broad ground that the Act does not remove the lands situated in a town planning area from being acquired under the Land Acquisition Act. If the Legislature had intended such far reaching effect, it would have made a specific and clear provision on that subject and would not have left the same to be inferred indirectly from an examination of the provisions of the Act. It is true that an Act may be by implication amended, but, in order that such a result may be achieved, the implication must be inevitable and must necessarily flow from the language of the Act, For these reasons, we are not in agreement with the submission of Mr. Gupte that the provisions, to which he had drawn our attention, deprive the Government of its powers to acquire land situated in a town planning area or that such land had become incapable of being acquired under the machinery of the Land Acquisition Act.

5. Mr. Gupte has also relied on Sections 51 and 51A of the Town Planning Act. Now on the date when the suit land was acquired, Section 51A was not in existence. That section was introduced, for the first time, by the Bombay Amendment Act LV of 1948. Therefore, the question about the power of the Government to acquire the suit land or the land being taken out of the category of lands, which can be acquired, has got to be decided mainly with reference to the provisions contained in Section 51 of the Act. So far as this section is concerned, the argument, which appears to have been advanced in and accepted by the lower Court, was that this section implied that the Government had no power to acquire land situated in a town planning area. Mr. Gupte did not support this argument and finding. He conceded that the true meaning and scope of Section 51 was to provide for acquisition of land for the purpose of a town planning scheme. But the contention of Mr. Gupte was that this section did not cover land situated within the limits of a town planning area. His contention was that it covered only lands situated outside such limits. He submitted that the expression 'land needed for the purpose of a town planning scheme' meant land situated outside the town planning area and not within it. He contended that this section was intended to cover those lands which were required for the town planning scheme but which lands were situated outside the area of the scheme. He contended that if the section were interpreted to cover land situated in a town planning area, then, it would mean that the Legislature was guilty of tautology as such lands could always be covered under the Act by the arbitrator allotting it for a public purpose. We do not agree with this submission. In our opinion, the contention of Mr. Gupte is against the plain language of the section itself, The word 'land' used in Section 51 is intended to cover all lands and cannot be restricted to lands situated outside a town planning area. The view which we take about this section is that it was really intended to expand the definition of the expression 'for public purpose' as used in Sections 4 and 6 of the Land Acquisition Act. The Legislature appears to have thought that a contention might be raised that acquisition of land for the purpose of a town planning scheme does not fall within the purview of the expression 'for public purpose' used in Sections 4 and 6 of the Land Acquisition Act. To negative such a contention, a specific legal fiction is created in Section 51 that land needed for the purpose of a town planning scheme must be deemed to be land needed for a public purpose.

6. The learned Assistant Government Pleader canvassed for a wider proposition. He contended that if this section was read as a whole and, especially, in the light of the marginal note, then, it showed that the machinery of the Land Acquisition Act could be used for acquiring land, which was situated within a town planning area. It was this contention which was seriously opposed by Mr. Gupte. In our opinion, the learned Assistant Government Pleader is right. Having regard to our conclusion that the word 'land' as used in Section 51 covers also land which is situated within a town planning area, it follows as a corollary that the Government has got power of using the machinery of the Land Acquisition Act for the purpose of acquiring such land. This conclusion is to some extent supported by the marginal note which shows the trend of the section and states that land needed for purpose of town planning scheme may be compulsorily acquired. Therefore, in our opinion, instead of Section 51 supporting the argument advanced by Mr. Gupte, it supports the argument of the Government that the Act does not deprive the appropriate authority of the powers to make use of the machinery of the Land Acquisition Act.

7. Mr. Gupte has strongly relied upon the fact that the Legislature had thought fit to introduce Section 51 A. He submitted that the enactment of Section 51A supported his earlier proposition that, once a draft scheme was sanctioned by the Government, then, the Government had no power to vary the draft scheme. He submitted that the introduction of the new section implied that the Government had no power to vary a draft scheme. However, if a statute is clear and unambiguous, then, subsequent legislation cannot affect its interpretation. It is the duty of the Court to interpret a statute and not for the Legislature to do so and this has got to be done with reference to the language used in the statute itself. An amendment is not necessarily made to remove a lacuna. It may be introduced ex majore cautela. In this connection, we may refer to the observations in Maxwell on Interpretation of Statutes, 10th edn., at p. 316.

Provisions sometimes found in statutes, enacting imperfectly or for particular cases only that which was already and more widely the law, have occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting on the maxim expressio unius, exclusion alterius. But that maxim is inapplicable in such cases. The only inference which a Court can draw from such superfluous provisions (which generally find a place in Acts to meet unfounded objections and idle doubts), is that the Legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution. If the law be different from what the Legislature supposed it to be, the implication arising from the statute, it has been said, cannot operate as a negation of its existence....

8. The task which we have to perform in this ease is to examine the language of the Town Planning Act, 1915, as it existed before Section 51A was introduced, and if an examination of the relevant provisions show that the Legislature unequivocally and unambiguously intended that the machinery of the Land Acquisition Act could be used for acquiring a land which is situated within a town planning area, then, the introduction of Section 51A does not make any difference. If the new section was introduced by the Legislature under the belief that till then the acquiring authority had no power to use the machinery of the Land Acquisition Act for the purpose of acquiring a land situated within town planning scheme, then, we cannot share that belief. If it did so without sharing such a belief, then, the Legislature must be taken to have introduced the new section ex majore cautela.

9. Examining the provisions of Section 51 A, it appears that the section applies to a land which is needed for a purpose other than a purpose for which provision is made in the scheme. Therefore, the scope of Section 51A appears to be different from the scope of Section 51 so far as the purpose of acquisition is concerned. In Section 51, the purpose is the purpose of a town planning scheme and in Section 51A the purpose is de hors that scheme. This provision appears to have been introduced mainly for the purpose mentioned in Sub-section (4) of Section 51A. That sub-section provides that, when any land is vested in the Crown under Section 16 or 17 of the Land Acquisition Act, the scheme shall be deemed to have been suitably varied by reason of acquisition of the land. Therefore, the main intention of the Legislature was to provide for an automatic variation of the town planning scheme on the acquisition taking place. But, that again, in our opinion, does not mean that the Government was debarred from acquiring land situated in a scheme area. Even before the introduction of the new section, though the Act did not permit Government to vary a scheme, the Government could use land for a purpose for which no provision was made in the scheme by approaching the arbitrator under Section 30(1) of the Town Planning Act and thus getting the scheme varied. In our opinion, though it is only the arbitrator who can vary a draft scheme, this does not either take away the power of the Government nor does it in any way impress land in the scheme area with any disability in matter of acquisition. Therefore, in our opinion, neither any of the provisions contained in the Town Planning Act nor Section 51 of the Act can justify any of the two propositions urged by Mr. Gupte. In our opinion, the suit land was capable of being acquired by the Government under the Land Acquisition Act and the first objection of the plaintiff must be overruled.

10. [His Lordship after considering the question whether the acquisition was ultra vires and illegal on the ground that the declaration and the act of acquisition were mala fides, proceeded.]

11. The next contention, which requires to be examined, is whether the municipality was competent to acquire lands outside its own limits. The contention of Mr. Gupte is that the municipality had no such power. A clear answer to this contention is Section 63 of the Bombay Municipal Boroughs Act, 1925. We may mention that though respondent No. 2 is now a Municipal Corporation and is now governed by the Municipal Corporation Act of 1948, it was, on the relevant date, a municipal borough and was governed by the provisions of the Municipal Boroughs Act, 1925. Section 63 of the said Act provides that a municipality may acquire and hold property both movable and immovable whether within or without the limits of the municipal borough. Therefore, this section provides in explicit terms that the municipality may not only acquire and hold property within its limits, but also acquire and hold property outside its own limits. The submission of counsel is based on the provisions of Section 66 of the said Act. That section states that the municipal fund and all property vested in a municipality shall be applied for purposes of the Act within the limits of the municipal borough, The contention, therefore, is that, as this section permits the municipality to use its fund only within the limits of the municipal borough and inasmuch as the acquisition of land outside its limits would mean utilization of municipal fund and property outside its limits, it had no power to acquire the land, in question. In our opinion, Section 66 has nothing to do with the subject of the acquisition of property. It deals with a different subject altogether-the subject of utilization of municipal funds. in our opinion, if this section were to be construed, as contended for by Mr. Gupte, then, Section 63 of the Municipal Boroughs Act would be rendered nugatory. These two sections should be construed in such a manner that both of them are made effective. The true meaning of Section 66, read with Section 63 of the Act, is that, though municipality may acquire land outside its limits, it must utilise that property for the purpose of the Act within the limits of the municipal borough only i.e., for the benefit of the citizens residing within the municipal borough. Therefore, we do not agree with the submission of Mr. Gupte that the municipality had no authority to acquire land outside its own limits.

12. [The rest of the judgment is not material to this report.]


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