Skip to content


All India Reporter Ltd. Vs. Nagpur Improvement Trust - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case Number W.P. Nos. 1370 and 1770 of 1975 and 2394 of 1976 (Nagpur.)
Judge
Reported in(1983)85BOMLR321
AppellantAll India Reporter Ltd.
RespondentNagpur Improvement Trust
DispositionPetition dismissed
Excerpt:
nagpur improvement trust act (c.p. and berar act xxxvi of 1936) sections 31, 45, 27, 35 to 44, 39, 60, 61, schedule clause 2 - land acquisition act (i of 1894), sections 6(1) first proviso, 1, 5--street scheme.--provision for building sties whether can be made in street scheme--reduction of speculation in prices of land whether extraneous consideration in making prevision for building sites-first proviso to section 6(1) of act i of 1894 whether applicable to notification issued under section 45 of nagpur improvement trust act--absence in section 45 of time limit for sanction by government to draft scheme--presence of three years time limit in section 6(1) first proviso of land acquisition act--8.43 whether discriminatory violating article 14 of constitution--authority whether has option.....ginwala, j.1. by these three writ petitions the petitioners challenge the validity of the 'bhamti parsodi street scheme' framed by the nagpur improvement trust and sanctioned by the state government, on identical grounds. they can, therefore, be disposed of by a single judgment.2. in order to appreciate the rival contentions of the parties it would be convenient at this stage to set out the relevant provisions of law. since it was found 'expedient to make provisions for the improvement and expansion of the town of nagpur', m a particular manner, the erstwhile legislature of the central provinces and berar enacted the nagpur improvement trust act c.n.i.t. act' for brief) in the year 1936. the duty of carrying out the provisions of this act is vested in a body corporate called the nagpur.....
Judgment:

Ginwala, J.

1. By these three writ petitions the petitioners challenge the validity of the 'Bhamti Parsodi Street Scheme' framed by the Nagpur Improvement Trust and sanctioned by the State Government, on identical grounds. They can, therefore, be disposed of by a single Judgment.

2. In order to appreciate the rival contentions of the parties it would be convenient at this stage to set out the relevant provisions of law. Since it was found 'expedient to make provisions for the improvement and expansion of the town of Nagpur', m a particular manner, the erstwhile Legislature of the Central Provinces and Berar enacted the Nagpur Improvement Trust Act C.N.I.T. Act' for brief) in the year 1936. The duty of carrying out the provisions of this Act is vested in a body corporate called the Nagpur Improvement Trust, respondent No. 1 herein ('the Trust' for short). Chapters II and III of the Act deal with the constitution of the Trust and the proceedings of the Trust and committees. The N.I.T. Act aims at achieving planned improvement and expansion of the city by means of various improvement schemes to be framed and executed by the Trust. Chapter IV makes provisions for such schemes. Section 27 enumerates the types of such schemes which are as follows::

(a) a general improvement scheme;

(b) a re-building scheme;

(c) a re-housing scheme;

(d) a street scheme;

(e) a deferred street scheme;

(f) a development scheme;

(g) a housing accommodation scheme;

(h) a future expansion or improvement scheme;

(i) a drainage or drainage including sewage disposal scheme.

This section says that an improvement scheme shall be of one of the types stated above or may combine any two or more of such types, or of any special features thereof. The purpose and requirements for these schemes are detailed in Sections 28 to 35-A.

3. Sections 36 to 47 occurring in Chapter IV prescribe the procedure to be followed in framing of improvement scheme. The broad features of this procedure are as follows.

4. The Trust can frame a scheme either upon an 'official representation' by the City of Nagpur Corporation ('the Corporation' for short) or otherwise. After a scheme has been framed, the Trust has to prepare and publish a notice as required by Section 39. Such notice has to state, (a) the tact that the scheme has been framed, (b) the boundaries of the area comprised in the scheme, and (c) the place at which particulars of the scheme, a map of the area comprised in the scheme, the description of land which it it proposed to acquire, etc. may be seen. It is to be published every week for three consecutive weeks in the official gazette and local news-paper or news-papers, if any, with a statement of the period within which objections would be received, A copy thereof has to be sent to the Chief Executive Officer of the Corporation who has to forward to the Trust within the time prescribed under Section 40, any representation which the Corporation may think fit to make with regard to the scheme. In addition to these notices, under Section 41 the Trust has to serve individual notices of the proposed acquisition on every person whose name appears in the municipal assessment list as owner or occupier of any land or building or premises proposed to be acquired. Such notice has to be served within 30 days of the first publication of the notice under Section 39 and has to state that the Trust proposes to acquire such land and has to call upon such person to state his reasons in writing within 30 days from the date of service of such notice, if he dissents from such acquisition. After the periods prescribed under Sections 39, 40 and 41 are over, the Trust has to consider the objections, representation or statements of dissent received thereunder and has to hear such of the persons making them, as desired to be heard. Thereafter the Trust may abandon the scheme or if it desires to pursue it, it has to apply to the State Government, giving prescribed particulars, for sanction with such modifications as it (the Trust) may consider necessary, (Section 43). The State Government may sanction, either with or without modification, or may refuse to sanction or may return for reconsideration any scheme submitted to it under Section 43. If the State Government sanctions the scheme, Section 43 inter alia requires it to announce the fact by notification. The publication of such notification is deemed to be conclusive evidence that the scheme has been duly framed and sanctioned. On such announcement, the Trust has to proceed forthwith to execute the scheme, except for a deferred scheme, development scheme, or future expansion or improvement scheme.

5. Sections 59 to 67 which find place in Chapter VI of the N.I.T. Act, relate to compulsory acquisition of land. Out of them, Sections 59 to 61 alone are relevant for our purpose. We may reproduce them in extenso:

59. The Trust may, with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of this Act, for carrying out any of the purposes of this Act.

60. A Tribunal shall be constituted, as provided in Section 62 for the purpose of performing the functions of the Court in reference to the acquisition of land for the Trust, under the Land Acquisition Act, 1894.

61. For the purpose of acquiring land under the Land Acquisition Act, 1894, for the Trust,-

(a) the Tribunal shall except for the purposes of Section 54 of that Act, he deemed to he the Court, and the President of the Tribunal shall be deemed to be the Judge thereunder;

(b) the Act shall be subject to the further modification as indicated in the Schedule;

(c) the President of the Tribunal may summon witnesses and enforce their attendance and may compel the production of documents, by the same means, and so far as may be, in the same manner, as is provided in ease of a Civil Court under the Code of Civil Procedure, 1908.

and

(d) the award of the Tribunal shall be deemed to he the award of the Court under the Land Acquisition Act, 1894 and shall be final.

The Schedule referred to in Section 61 consists of 14 clauses out of which Clause (2) is material for us and it is in the following terms:

(2) (1) The first publication of a notice of an improvement scheme under Section (1) of the Nagpur Improvement Trust Act, 1980, shall be substituted for, and have the same effect as publication in the official Gazette and in the locality of, a notification under Sub-section (1) of Section 4, except where a declaration under Section 4 or Section 6 has previously been made and is still in force.

(2) Subject to the provisions of Clauses 10 and 11 of this Schedule, the issue of a notice under Sub-section (4) of Section 82 of the Nagpur Improvement Trust Act, 1986, in the ease of land acquired under that sub-section and in any other case the publication of a notification under Section 45 of the Nagpur Improvement Trust Act, 1980, shall be substituted for, and have the same effect as a declaration by the State Government under Section 6, unless a declaration under the last mentioned section has previously been made and is in force.

6. It would, therefore, appear that any land which is necessary for execution of a scheme can be compulsorily acquired by the Trust under the provisions of the Land Acquisition Act, 1894 ('Acquisition Act' for brief) as modified, under Sections 60, 61 and the Schedule of the N.I.T. Act.

7. The only provision from the Acquisition Act which is material for our purpose is Section 6 thereof. This section contemplates a declaration to be made to the effect that a particular land is needed for public purpose. Sub-section (1) of Section 6, which requires such a declaration to be made, is hedged by two provisos, the first of which is in the following terms:

Provided that no declaration in respect of any particular land covered by a notification under Section 4, Sub-section (1), published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1907, shall be made after the expiry of three years from the date of such publication.

This proviso has been inserted by the Ordinance referred to therein which was subsequently converted into an Act of Parliament.

8. The Trust by its resolution passed on May 7, 1969, resolved to frame a scheme under Section 31 of the N.I.T. Act, called the Bhamti Parsodi Street Scheme comprising of an area of about 382 hectares (952 acres) for development of a locality which falls within certain boundaries described therein. This resolution speaks of the prevailing speculations in lands due to which the prices of land in the said area are on the increase. It says that it is 'necessary to stop the speculation and put under acquisition as much open land as possible by framing suitable scheme of improvement.' Out of the area covered by the scheme, it was proposed to provide residential plots in about 400 acres and about 150 acres were to be used for commercial and public utility plots and open spaces. Thus 44 per cent and 25 per cent of the total area would be used for the above-said purposes respectively. In pursuance of this resolution the Trust published a notice under Section 39 of the N.I.T. Act, on December 15, 1969. The area covered by the scheme inter alia comprises Khasra Number 13/2, 19/3 and 9.10.35/2 of Bhamti belonging to the petitioner in Writ Petition No. 1370 of 1975 and Khasra Number 19/4 of Bhamti belonging to the petitioner in Writ Petition No. 1770 of 1975 while Khasra Number 52 of Khamla, belonging to the petitioner in Writ Petition No. 2394 of 1976.

9. The petitioner in Writ Petition No. 1370 of 1975 submitted its statement of dissent in pursuance of this notice on September 11, 1970. It appears that the petitioners in the other two petitions did not prefer any objections, It further appears that on December 7, 1970 the Trust applied to the State Government (respondent No. 2) for sanction to the scheme as required by Sub-section (1) of Section 43 of the N.I.T. Act. The State Government accorded sanction to the scheme in exercise of its powers under Sub-section (1) of Section 44 of the said Act with certain modifications with which we are not concerned in these petitions. The State Government announced its sanction by notification dated September 18, 1974. The scheme thus having been sanctioned by the State Government, the Trust proceeded to execute it and took steps to acquire lands comprised therein. It seems that the Collector (respondent No. 3) issued notices to the petitioners under Section 9 of the Acquisition Act for submitting their claims for compensation. As stated above, the petitioners have moved this Court under Article 226 of the Constitution for quashing the said scheme.

10. In support of his challenge to the impugned scheme Mr. Oke, the learned Counsel for the petitioners, firstly submitted that the scheme as framed by the Trust and sanctioned by the State Government travels beyond the scope of Section 31 of the N.T.T. Act under which it is purported to have been framed. In this behalf he urged that Section 31 contemplates a scheme the dominant purpose of which is to lay down or provide streets and not to provide house sites for residential or commercial purposes. Referring to the resolution which the Trust passed on May 7, 1969 for framing the scheme and the notice issued by the Trust under Section 39 of the N.I.T. Act, copies of which are at annexures A and E in Writ Petition No. 1370 of 1975, he submitted that out of an area of about 955 acres covered by the scheme, about 400 acres were to be utilised for providing residential plots and about 150 acres for commercial and public utility plots and open spaces, thus leaving only 31% of the total area for streets. He contended that if that was so, the scheme cannot be said to be falling under the provisions of Section 31. Belying on them he further contended that the object behind framing the scheme is to reduce speculation in prices of land in the area. Mr. Oke submitted that as neither Section 31 nor any other provision in the N.I.T. Act empowers the Trust to frame an improvement scheme much less a street scheme for controlling prices of land in a given area, the impugned scheme had been framed for irrelevant and extraneous purposes and not for the purpose of laying out new streets or altering existing streets as required by Section 31.

11. Perusal of the said resolution would indicate that the Trust purported to act under Section 31 of the N.I.T. Act while it approved of framing the impugned scheme which it designated as 'Bhamti Parsodi Street Scheme.' The penultimate para of this resolution states the extent of the land which would be used for providing residential commercial and public utility plots and open spaces. It comes to nearly 69% of the total area covered by the scheme. The first para of the resolution says that the proposed scheme is 'for development of the area' and for 'providing proper roads, amenities and to meet the heavy demand for plots in the western part of the city'. The second para which speaks about speculation in land is in following terms:

Chairman explained that the town has been fast expanding towards the west and mainly persons and societies are speculating in land. The Trust has no plots in the western zone for allotment to the various groups of people for which there is a great demand. Since the trend of development is towards the western part of the city, there has been a great Speculation and the prices of lands are going higher and higher and it is feared that the societies or individuals would sell lands at high prices. It is therefore necessary to stop the speculation and put under acquisition as much open land as possible by framing suitable schemes of improvement. The schedule would reduce speculation and provide building lands to the needy persons at reasonable rates.'

From what has been stated in the resolution it would appear that the scheme was to be framed not only for providing roads but also for making provisions for plots of land for residential and commercial purposes for which there was heavy demand as could be seen from the rising trend of prices leading to speculation. The purpose of framing the scheme is more clearly brought out in the preamble to the notice published on December 15, 1969 under Section 39 of the N.I.T. Act. It says that in accordance with the provisions of Section 31 of the N.I.T. Act, the Trust has by its resolution dated May 7, 1969, framed the Scheme 'for the purpose of extension of the residential zone with a view to provide buildable sites, to reduce the speculation in land prices, to check the unauthorised development and also to provide for proper roads and other amenities for the developing areas.' The question, therefore, which falls for consideration is whether the Trust can make provision for building sites in a scheme which it purports to frame as a street scheme under the provisions of Section 31 of the N.I.T. Act.

12. This question came up for consideration before a Division Bench of this Court in two cases namely, : (1) Krishnarao v. Nagpur Improvement Trust (1974) Spl. C.A. No. 885 of 1968 (Nagpur Bench) decided on April 3/5, 1974 (Unrep.) and (2) Ramchandra v. Collector : AIR1975Bom281 (decided on March 15, 1974 by Nagpur Bench.). It is significant to note that in both these cases the same Division Bench was called upon to consider and construe the very provisions of the N.I.T. Act which require to be construed in the present petitions. Hence what has been held in these two cases on the question under consideration will squarely govern these petitions.

13. In the first of these cases which comprised of a bunch of petitions, the Trust by its resolution passed on January 30, 1958, in accordance with Section 31 of the N.I.T. Act, framed a street scheme called 'the Central Road Scheme, Section II-B' for the purpose of creating new means of communication and for connecting the areas of the Central Road in the Central Road Scheme, Section II-A and the Central Road Scheme, Section III. The petitioners whose lands were sought to be acquired for providing building sites in execution of the said scheme applied to the Trust under Section 68 of the N.I.T. Act requesting that the acquisition of their lands should be abandoned as they were not required for the purposes of the scheme which as said above was only a street scheme. The Trust rejected these applications whereupon the petitioners moved this Court. One of the contentions urged on behalf of the petitioners was that 'the Scheme being solely a street scheme as contemplated by Section 31 of the Trust Act, the Trust had no power whatsoever to acquire any land which is not required for the construction of the road in question'. It was further contended that 'the Scheme in question was only a street scheme Within the meaning of Section 31(c) of the Trust Act, and since the scheme is not one which is intended to provide building sites, the power of the Trust to acquire property was restricted only to acquire such property as was necessary for the construction of the road as such and no more and that the Trust did not have any power to acquire property for providing building sites'. After examining the record of the Trust, the Division Bench held that 'the State Government, while sanctioning the Scheme, was also sanctioning the Scheme, not only for the purposes of construction of roads but also for the purposes of providing building sites' and that the Scheme in question was part of the bigger Central Road Scheme and both these Schemes had always contemplated providing building sites as one of the purposes of the Scheme. Thus the Division Bench proceeded on the footing that the Scheme which was under challenge before it was not merely a street scheme as contended by the petitioners but also provided for building sites and then decided the question whether such a scheme could be validly framed under Section 31 of the N.I.T. Act. It is in this background that it ruled as under:

It must be understood that the scheme has to he read as a whole and one cannot merely go by the nomenclature of the scheme. The nomenclature merely reflects its essential features or the essential purpose. If in the particulars of the scheme, the Trust has, apart from making a provision for construction of roads, also made a provision for making available house sites, it is difficult to see why the scheme cannot be said to be a street scheme. The concept of a street scheme under Section 31 is not merely restricted to creating new or improving existing means of communication and facilities for traffic. A street scheme contemplated by Section 39 (sic) appears to be a comprehensive scheme, one of the purposes of which could be the provision of building sites.

and further on:

It is no doubt true that under Sub-section (2) of Section 31 a street scheme could provide for the acquisition of land which would, in the opinion of the Trust, be necessary for its execution. Our attention was drawn to this provision in support of the same argument, namely, that the present Scheme being one which is covered only by Clause (c) of Sub-section (1) of Section 31, land for building sites could not be acquired by the Trust. What is provided in Clause (a) of Sub-section (2) of Section 31 must be read in the light of what was the scope of the Street Scheme itself and Clause (b) is obviously intended to give power to the Trust to acquire land which is necessary for the purposes of the scheme, the scope of which had to be determined with reference to the several clauses in Sub-section (1). If, in the instant case, the scheme was in essence a Street Scheme not restricted merely to the construction of the reads but the scheme had for its purposes the construction of residential and shop accommodation and bringing up also a market, these purposes would squarely fall within Clause (a) and (c) of Sub-section (1) of Section 31 and it would, therefore, be competent for the Trust to acquire land for these purposes in exercise of its powers under Clause (a) of Sub-section (2) of Section 31 of the Trust Act.

14. This ruling is, therefore, a direct authority on the point under consideration.

15. In the second case [Ramchandra v. Collector (supra)] which again consisted of a bunch of three writ petitions, the question arose in a slightly different form. There the Trust passed a resolution under Section 31 of the N.I.T. Act for framing a scheme called the Eastern Industrial Area Street Scheme, the object of which was to provide plots for residential, commercial and industrial purposes for which there was great demand. After the scheme was sanctioned by the State Government proceedings for acquiring the lands of the petitioners, were started, which culminated in an award made by the Collector. Apart from seeking a reference against the award, the petitioners invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution to challenge the acquisition itself on various grounds including violation of their fundamental rights under the erstwhile Articles 19(1)(f) and 31, One of the contentions before the Division Bench was that the scheme which was framed by the Trust under Section 31 of the N.I.T. Act was ultra vires its powers thereunder as it made no provision for acquiring any land for the construction of factories or light industries. It was urged that in a street scheme no provision could be made for acquisition of land for the purposes of industries or for acquiring the land which is affected by the execution of the scheme itself. While repelling this contention the Division Bench said (at p. 296 para. 33):

In our opinion, the provisions of Section 81 of the Act will have to be read together with other provisions of Chapter IV of the Act. The said Chapter will have to be harmoniously construed and if all the provisions of the said Chapter and the Act are read together, in our opinion, even to a scheme framed under Section 81 of the Act the provisions of Section 20 will apply. Section 26 of the Act is a general provision and makes a provision for the acquisition of the property which is necessary for or affected by the execution of the scheme itself.

Section 27 of the Act lays down the types of improvement schemes and further permits the trust to frame a scheme which might be a combination of any two or move of such types of schemes. Section 31 specifically provides for framing of a scheme which might include a provision for building sites. The term 'building' has been defined by the Act meaning thereby a house, hut, shed or other structures for whatever purpose and of whatever material constructed and every part thereof, whether used as a human habitation or not, and includes well, latrine drainage work, fixed platform, varandah, plinth, doorstep, compound wall, fencing and the like, and any work connected therewith. The construction of a shed or structure for the purposes of a factory or industry will definitely amount to construction of building within the meaning of the Act and in our opinion, is covered by the definition of the said term as defined by Section 2(a-1) of the Act. Therefore, in our view, it is open for the Trust to frame a scheme for providing building sites for the purposes of industries also. Framing of a scheme to provide for an accommodation for the purposes of industries and factories is a part and parcel of the improvement scheme contemplated by chap. IV of the Nagpur Improvement Trust Act for the improvement and expansion of the town. Such a scheme will meet the general needs of the population in this behalf and will also provide for other public amenities and the sites therefor. In this view of the matter it is not possible for us to accept this contention of Shri Natu.

16. The decisions in these two cases, therefore, negative the contention that in a scheme framed under Section 31 of the N.I.T. Act provision for building sites, which term would include plots for residential and commercial buildings, cannot be made. The matter can be looked at from another angle also. As seen above, Section 27 names the various kinds of improvement schemes which can be framed by the Trust. Sections 28 to 35A state the contingencies in which these schemes can individually be framed and the matters which can be provided in them. Since each scheme named in Section 27 is dealt with separately in one of the sections from Sections 28 to 35A, it could be argued that the legislature intended each of these schemes to be framed and executed in isolation without their being mixed with one another or one scheme incorporating the features of the other or others. Having regard to the complex problems involved in carrying out improvement and expansion of a growing city like Nagpur such a restriction on the power of the Trust to frame various schemes of improvement would have put serious obstacles in its way. It would have been practically impossible to frame any of the schemes so as not to encroach on the field covered by any other scheme or not to imbibe any feature of the other schemes. The expansion and improvement of a town or city is an integrated process. You cannot have one scheme strictly for laying down or altering streets without at the same time providing building sites which these streets would serve. Similarly you cannot have a future expansion or improvement scheme under Section 35 without at the same time providing streets, lanes and other amenities. Technically it can be said that two separate schemes namely a street scheme and a housing accommodation scheme can be simultaneously framed and executed. But if two or more separate schemes can be framed for each matter there should be no difficulty or objection in combining these schemes and making a consolidated scheme. In order to make its intention clear in this behalf and to allay any doubts which may lurk regarding the power of the Trust to frame integrated schemes, the legislature has prefaced Section 27 with the following words:

Any improvement scheme shall be of one of the following types or may combine any two or more such types, or of any special features thereof, ...

Again Section 47 says that any number of areas in respect of which improvement schemes have been or are proposed to be framed, may at any tune be included in one combined scheme. It would, therefore, appear that these provisions permit the Trust to combine two or more types of schemes. Assuming that providing building sites does not come within the preview of Section 31, it would be covered by Section 35 which provides for a future expansion or improvement scheme. It would be but proper, nay necessary, to provide building sites in a future expansion scheme. Framing a scheme for expansion of a city without at the same time making building sites available therein, is inconceivable. In view of these provisions it would be permissible for the Trust while framing a street scheme to make provision for building sites which is a special feature of future expansion or improvement scheme contemplated by Section 35. The name which is given to a scheme cannot govern its purpose. We, therefore, do not find any merit in the contention that provision for building sites cannot be made in a scheme which is purported to be framed under Section 31 and is designated as a street scheme.

17. It now remains to be seen whether reduction of speculation in prices of land as one of the considerations for making provision for building sites in the scheme vitiates it on the ground that, such a consideration is extraneous or irrelevant. Section 31 or for that matter Section 35 does not circumscribe the power of the Trust to make such a provision by laying down any conditions. Expediency in the opinion of the Trust is the only limitation if there is any. Several factors may come in for consideration if one has to form an opinion with regard to the expediency of a situation. It would be well nigh impossible for the legislature to list factors which alone make up for forming an opinion so as to make other factors irrelevant or extraneous. If the legislature thinks that certain matters should not be considered it may specifically say so and they would be excluded, But if the expediency of a situation is left to the opinion or subjective satisfaction of a statutory authority the latter has to go by the object and scheme of the legislation. Now if it is conceded that the provisions contained in the N.I.T. Act empower the Trust to make provision for building sites in a scheme, it may have to decide if there is necessity for doing so. If it finds that sufficient buildable sites are not available in the town with the result the prices of land are soaring high putting such sites beyond the reach of the common man, one fails to see why it should not step in and open up more sites for being made available to needy persons with limited means. After all for whom is a welfare state meant? Hence in this context taking into consideration the rising prices of land leading to speculation therein while deciding the expediency of providing building sites cannot be said to be irrelevant or extraneous vitiating the decision. Hence we do not find any substance in this contention, We, therefore, have no hesitation in rejecting the first ground urged by Mr. Oka.

18. This then brings us to the next contention urged by Mr. Oka. He submitted that since by virtue of Clause (2) of the Schedule to the N.I.T. Act. the publication of the notice under Section 39 and the notification under Section 45 are respectively substituted for and have the same effect as a notification published under Sub-section (1) of Section 4 and a declaration under Section 6 of the Land Acquisition Act, the first proviso to Section 6 of the Acquisition Act would be applicable to the notification under Section 45 of the N.T.T. Act and hence if any such notification is published three years after the publication of the notice under Section 39 of the N.I.T. Act, it would be null and void being in breach of the said proviso to Section 6. He pointed out that in the present case the notice under Section 39 was first published on December 15, 1969 and the notification issued by the State Government under Section 45 was published on September 18, 1974, that is beyond the period of three years from the publication of the said notice. Hence according to him, the said notification under Section 45 is null and void ab-initio since it contravenes the mandatory provision contained in the first proviso to Section 6 of the Acquisition Act.

19. As a second limb of this contention he submitted that if it is held that the said proviso does not operate on the notification issued under Section 45 of the N.I.T. Act, this section, without any limitation on the power of the State Government to sanction an improvement scheme and to announce the same by notification on the same lines as clamped by the said proviso, suffers from the vice of discrimination and is violative of Article 14 of the Constitution, as in that case two modes of acquisition would be available to the acquiring body, one of which would be favourable to the owner of the land and the other onerous and unfavourable. For this proposition Mr. Oka relied on the decision of the Supreme Court in Nagpur Improvement Trust v. Vithalrao A.I.R. [1973] S.C. 689 and that of a Full Bench of the Punjab and Haryana High Court in Harbans Kaur v. Ludhiana Improvement Trust I.L.R. [1973] P & H 705.

20. Let us first see if the first proviso to Section 6 of the Land Acquisition Act operates on the notification issued under Section 45 of the N.I.T. Act. It is needless to say that the execution of an expansion or improvement scheme for a city like Nagpur would involve acquisition of large tracts of land. That is why Clause (a) of Section 26 of the N.I.T. Act enables the Trust to make provision in an improvement scheme for acquisition of any property necessary for or affected by the execution of the scheme. Acquisition through negotiation and agreement with the owner of the land would not pose much of a problem for the Trust. But in a vast majority of cases such acquisition is not feasible. The Trust has, therefore, to resort to compulsory acquisition. This could be possible under the provisions of the Land Acquisition Act, 1894, which is of general application in this country. If the provincial legislature which enacted the N.I.T. Act in 1936, had felt that the provisions of the Land Acquisition Act would be adequate to meet the requirements of compulsory acquisition for carrying out the purposes of the said Act, it would either not have made any provision for compulsory acquisition in the Act itself or would have rest contented by stating that such acquisition should be under the provisions of the Land Acquisition Act. It, however, seems that the legislature felt otherwise. Probably it thought that the provisions of the Land Acquisition Act as they stood then would not be wholly suitable for the acquisitions under the N.I.T. Act. That is why in Section 59 of that Act it said that the Trust may acquire land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of that Act (N.I.T. Act) itself. It spelt out the modifications in Section 61 read with the Schedule. These modifications are numerous and substantial and when read with the provisions of the Land Acquisition Act, have the effect of creating a special code for acquisition of land by the Trust. Thus the provincial Legislature devised its own code and special law for such acquisition. Instead of rewriting these modified provisions wholly in the N.I.T. Act the Legislature resorted to the device of incorporating them by reference.

21. If that is so, the question which needs be considered is as to what is the effect of the amendments made in the Acquisition Act subsequent to the enactment of the N.I.T. Act. Are such amendments also deemed to be incorporated in the latter Act? As seen above, the first proviso to Section 6 of the Acquisition Act came to be inserted in 1967 by the Land Acquisition (Amendment and Validation) Ordinance, 1967 which was subsequently converted into an Act called the Land Acquisition (Amendment and Validation) Act, 1967. There is nothing in the Ordinance or the Act to make the amendment retrospective or to incorporate it in other Acts also where Section 6 has been incorporated by reference. Indeed looking to its language it could not have been retroactive and is prospective. This amendment cannot, therefore, be deemed to be operative in 1936 when the N.I.T. Act was put on the statute book. There is nothing either in the N.I.T. Act or any other legislation to suggest that the Central Provinces and Berar Legislature which passed that Act, felt itself bound by any amendment which the Central Government may carry out subsequently in the Acquisition Act. For aught one knows such amendment may run counter to the modified provisions as incorporated and may not be acceptable to the Stale legislature. It is, therefore, clear that what the legislature did was to incorporate the provisions of the Acquisition Act as they existed at the time of the N.I.T. Act was passed subject to such modifications as the latter Act may make. It is now well settled that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, if it is possible for the subsequent Act to function effectively without the addition. It is needles to say that the N.I.T. Act as incorporating the provisions of the Acquisition Act was functioning effectively without the first proviso to Section 6 and can function even thereafter. We are, therefore, of the opinion that the first proviso to Section 6 of the Land Acquisition Act is not applicable to the notification issued under Section 45 of the N.I.T. Act.

22. We are fortified in the view we take by the decision of the Privy Council in Secretary of State v. Hindustan Co-operative Insurance Society Ltd. : (1931)33BOMLR1006 , the facts of which come very near the facts in the present case. The question which fell for consideration before the Privy Council was as to the effect of the addition of Sub-section (2) to Section 26 of the Land Acquisition Act, 1894, by the amending Act of 1921, on the right of appeal against an award made by the Tribunal constituted under the provisions of the Calcutta Improvement Act, 1911, which is a local Act. It will be of some interest to note that the provisions of this Act particularly with regard to compulsory acquisition of lands, are practically identical to the provisions of the N.I.T. Act. It appears that the Calcutta Improvement Act, the N.I.T. Act and the Punjab Town Improvement Act, 1922 the provisions of which came to be considered in Harbans Kaur's case (cited supra), are in pan materia and have been modelled on the provisions of a Bombay Act called the City Improvement Act (Bombay Act 4 of 1898), It is pertinent to note that apart from other provisions, Sections 39 to 47 of the N.I.T. Act which deal with the procedure to be followed in framing an improvement scheme are identical with Sections 43 to 51 of the Calcutta Improvement Act, except for some verbal changes which are immaterial, Same is the case with Sections 59 to 67 and the Schedule of the N.I.T. Act regarding compulsory acquisition, which correspond practically verbatim to Sections 69 to 77 and the Schedule of the Calcutta Act. It looks as though these and other provisions have been bodily lifted from the Calcutta Act.

23. In the Hindustan Co-operative Society's case (cited supra) the Privy Council held that the Calcutta Improvement Act did nothing more than incorporating certain provisions from the Acquisition Act as they existed in 1911 when the former Act was passed, and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at length the provisions which it was desired to adopt. It was not prepared to hold that Sub-section (2) of Section 26 which was not enacted till 1921 can be regarded as incorporated in the local Act of 1911. In arriving at this conclusion it has enunciated the rule of interpretation in the following words (at p. 152, column 2):

It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.

This view has been cited with approval by the Supreme Court in Municipal Commissioner v. Shalimar Wood Products : [1963]1SCR47 . Now what has been held by the Privy Council with regard to the provisions of the Calcutta Improvement Act and the Acquisition Act and the effect of the subsequent addition in the latter on the former, will apply with equal force to the provisions of the N.I.T. Act vis-a-vis those of the Acquisition Act, since, as seen above, the Calcutta Act and N.I.T. Act are practically identical in terms. We are, therefore, clear in our mind that the first proviso to Section 6 of the Acquisition Act does not govern notification issued under Section 45 of the N.I.T. Act, assuming that what Sub-clause (2) of Clause (2) of the Schedule to the N.I.T. Act does is to substitute the notification under Section 45 of the said Act for the declaration under Section 6 of the Acquisition Act.

24. Apart from this, having regard to the scheme of Sections 36 to 45 of the N.I.T. Act, it would appear that the provisions contained therein correspond to Sections 4 to 6 of the Acquisition Act as both these sets of sections deal with the procedure to be followed prior to the final decision for acquisition. In short they deal with pre-acquisition procedure. Since the procedure laid down in Sections 4 to 6 of the Acquisition Act would not have been suitable for framing a scheme which involved acquisition of land, legislature has devised its own procedure as adumbrated in Sections 36 to 45. Hence in effect Sections 4 to 6 of the Acquisition Act are replaced by Sections 36 to 45 of the N.I.T. Act and as held by the Division Bench in Krishnarao's case (cited supra), the provisions of the Land Acquisition Act really come into operation after the scheme is sanctioned by the State Government under Section 45 of the N.I.T. Act, In this view of the matter, Section 6 of the Acquisition Act itself will not govern the power of the State Government to sanction the improvement scheme, with the result that the question of the first proviso thereof limiting such power will not arise.

25. In this background let us now turn to the challenge on the ground of constitutional validity. As said above, Sections 4 to 6 of the Acquisition Act and Sections 36 to 45 of the N.I.T. Act deal with pre-acquisition procedure. The question is whether classifying acquisitions under the N.I.T. Act and those under the Acquisition Act, for the purposes of this procedure would be violative of Article 14. A somewhat similar question came up for consideration before the Supreme Court in two cases namely: (1) Sarwan Singh v. State of Punjab : [1975]2SCR1007 and (2) State of Kerala v. T.M. Peter : [1975]2SCR1007 .

26. In Sarwan Singh's case (supra) the Supreme Court was dealing with the provisions of the Punjab Town Improvement Act, 1922 which, as seen above, is in pari materiel with the N.I.T. Act and contains identical provisions. Sections 39 and 45 of the N.I.T. Act correspond to Sections 36 and 42 of the Punjab Act and Section 61(a) of the former is identical in terms with Section 59(a) of the latter. One of the contentions before the Supreme Court was that Section 59(a) was ultra vires Article 14 of the Constitution. The submissions which were made in this behalf may better be reproduced in the words of the Court (at p. 396); (para 3):

It is pointed out that by Section 59(a) of the Improvement Act the Tribunal is not deemed to be the court under the Acquisition Act for the purpose of Section 54 of the latter Act and under Section 59(d) the award of the Tribunal is deemed to be the award of the court under the Acquisition Act and shall also be final. It is, therefore, contended that the two rights of appeal, which are available under Section 54 of the Acquisition Act, are denied when land is acquired under the Improvement Act. Right of appeal being denied in cases of acquisition by the Improvement Trust, Section 59(a) is ultra vires Article 14 of the Constitution. It is submitted that the land acquired for the Trust is as much for public purpose as acquisition of the same for public purpose under the Acquisition Act. There is, according to counsel, a clear discrimination when land is chosen to be acquired under the Improvement Act when it could have been done under the Acquisition Act. It is submitted that there is, therefore, an infringement of fundamental right of the appellants guaranteed under Article 14 of the Constitution in denying the right of appeal.

While rejecting this contention the Court observed (at p. 397, para. 6):. .Land acquired for the Trusts under the Improvement Act, as will be shown below, can be reasonably placed under a well-defined category in view of the scheme underlying the detailed provisions in the said Act. It is well settled that Article 14 does not abhor a reasonable classification provided the basis of the classification has a rational relation to the object to be achieved by the Act. Here the object of the Improvement Act being improvement of the towns covers a specific, though a wide, field as may be evidenced by the elaborate provisions for preparation and implementation of schemes by the Trust under the said Act. Leaving aside the case of companies, which are dealt with under different provisions, the Government under the Acquisition Act acquires land for public purposes without the preliminary requirements of any schemes for utilisation of the particular land. On the other hand, under the improvement Act there is a statutory obligation upon the trusts first to frame appropriate schemes in which case the matter is likely to take air and the public as well as the land owners may benefit materially from knowledge of acquisition prior to the actual notification under Section 86 as against a preliminary notification under Section 4 of the Acquisition Act which appears in the gazette all of a sudden. This pre-acquisition difference of procedure is significant as the material date for determination of compensation in either case is the publication of the notification under Section 86 and Section 4 respectively. This fact is of great relevance as the real grievance in these appeals is against the denial of a right of appeal against the decision of the Tribunal appertaining to the domain of possibility of enhancement of compensation in appeals. Although acquisition under the Acquisition Act is also generally for public purpose, the character of the acquisition under the Improvement Act is different and the difference has a definite and intimate nexus with the principal object of the Act, namely, improvement of towns which is the dominant purpose. No valid exception can, therefore, be taken to adaptation of the Acquisition Act with modifications to suit the requirements of the Improvement Act and in particular to the deletion of the provisions of appeal under Section 54 of the Acquisition Act. Acquisition of land under the Improvement Act admits of a reasonable basis of classification and Section 50(a) is, therefore, not violative of Article 14 of the Constitution.

What the Court has said will apply with equal force to Section 42 of the Punjab Act and a fortiori to Section 15 of the N.I.T. Act.

27. The decision of the Supreme Court in State of Kerala v. T.M. Peter (cited supra) clinches the issue before us. That case came up in appeal from the judgment of Kerala High Court where the constitutional validity of certain provisions of Town Planning Act, 1908 (Travancore Act 4 of 1908) was challenged on the ground that an acquisition under the Town Planning Act operated more prejudicially than an acquisition under the Kerala Land Acquisition Act, 1961, in two essential respects, namely (1) that there was no liability to pay 15 per cent. as solatium as in the case of acquisition under the Kerala Land Acquisition Act and (2) that there was no time limit for sanction of the draft scheme by Government in Section 12 of the Town Planning Act as is found in the proviso to Section 6 of the Kerala Land Acquisition Act. A Division Bench of the Kerala High Court upheld these contentions and rejected appeals against decisions of two single Judges. (See Land. Acquisition Officer v. Xavier ILR [1976] Ker 620. The Supreme Court sustained the judgment of the High Court only in so far as the first ground of challenge was concerned, namely depriving a claimant of solatium, but reversed it as regards the second ground, namely absence of any time limit for sanctioning the draft scheme. It may be mentioned here that the provisions of the Town Planning Act and the Kerala Land Acquisition Act are analogous to the provisions of the N.I.T. Act and Land Acquisition Act, 1894, respectively. It is pertinent to note that the proviso to Section 6 of the Kerala Land Acquisition Act, 1961 is identical in terms to the first proviso of Section 6 of the Land Acquisition Act except for the duration of the time limit. It was contended before the Supreme Court that the relevant provisions of the Town Planning Act were violative of Article 14 of the Constitution being arbitrary and discriminatory, firstly because the absence of any time limit for sanction of the draft scheme by the Government under the Town Planning Act as against the Kerala Land Acquisition Act puts arbitrary and unreasonable restriction on the owner to deal with his land and secondly because the authority concerned has an option to acquire the land either under the Town Planning Act or the Kerala Land Acquisition Act, the former being more onerous than the latter in so far as the owner of the land is concerned. The Supreme Court repelled both these contentions.

28. As regards the first contention after considering the object and the scheme of the Town Planning Act, the Supreme Court observed in paras. 10 and 11 of the report as follows (p. 1443):

10...We indicate the elaborate character of the strategy, stages, contents and character of schemes for improvement and the opportunities for objections and suggestions to the public and the consultation with technical experts and Government, time and again, only to emphasise the complex nature of modern urban development schemes which makes it a different category altogether from the common run of 'public purpose' for which compulsory acquisition is undertaken by the State. Concept-wise and strategywise, development schemes stand on a separate footing and classification of town planning schemes differently from the routine projects demanding compulsory acquisition may certainly be justified as passed on a rational differentia which has a reasonable relation to the end in view viz. improvement of towns and disciplining their development.

11. Once this basic factor is recognised, the raisin d'etre of a separate, legislation for and separate treatment of town planning as a special subject becomes clear. It was pointed out that under the Kerala Land Acquisition Act, there is a time limit of 2 years written into Section 6 by engrafting a proviso thereto through an amendment of 1968 (Act 29 of 1968). Section 6 deals with declaration that land is required for a public purpose and the relevant proviso thereto reads :-

Section 6(1) Proviso ;

Provided that no declaration in respect of any particular land covered by a notification Under Sub-section (1) of Section 3 shall be made after the expiry of two years from the date of publication of such notification.An argument was put forward that under the Land Acquisition Act there is thus a protection against unlimited uncertainty for the owners once lands are frozen in the matter of dealing with them by an initial notification. This protection, against protraction and inaction on the part of the State and In mobilisation of ownership is absent in the Town Planning Act. According to Mr. T.C. Raghavan, appearing for some respondents, it makes for-arbitrariness and discrimination invalidatory of the relevant provisions of the Town Planning Act. In our view there is no substance in this submission, having regard to specialised nature of improvement schemes and the democratic participation in the process required in such cases. We repel the submission.

29. The second contention was rejected with these observations in paras. 13 and 14 of the report (at p. 1443 and 1444):

We do not accept the argument that there is a real option for the authority to acquire either under the Land Acquisition Act or under the Town Planning Act when land is needed for a scheme. Theoretically, yes. But practically No. Which sensible statutory functionary, responsible to the Treasury and to the community, will resort to the more expensive process under the Land Acquisition Act as against the specially designated and less costly provision under Section 34? Fanciful possibilities, freak exercise and speculative aberrations are not realistic enough for constitutional invalidation on the score of actual alternatives or alive options, one more onerous than the other.

After referring to a passage from its judgment in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay : [1975]1SCR1 it proceeded to observe (at p 1444):

14. The same reasoning applies to the present situation. The Town Planning Act is a special statute where lands have to be acquired on a large scale and as early and quickly as possible so that -schemes may be implemented with promptitude. What is more, there is a specific and purposeful provision excluding some sections of the Kerala Land Acquisition Act. In such circumstances, it is incredible that the authority acting under the Act will sabotage Chapter VII, in particular Section 84, by resorting to the Kerala Land Acquisition Act in derogation of the express provision facilitating acquisition of lands on less onerous terms. He functions under the Town Planning Act, needs lands for the schemes under that Act, has provisions for under that Act. Then would he, by recondite action, travel beyond that Act and with a view to oblige the private owner betray the public interest and resort to the power under the Land Acquisition Act, disregarding the non-obstante provision in Section 34 of the Act? Presumption of perversity cannot be the foundation of unconstitutionality. Moreover, the expression used in the context of Section 32, clearly does not bear the meaning attributed to it by the counsel for the respondents. All that it means is that when immoveable property is found necessary for the purpose of scheme it may be acquired by the compulsory process written into Section 82. It is, as if there were only one option, not two. If the scheme is to be implemented, the mode of acquisition shall be under Section 82 and the manner of such acquisition is the same under the Land Acquisition Act minus Sections 14, 22 and 25 thereof. A slight reflection makes it clear that the mode prescribed is only one, and so the theory of alternatives one of which being more onerous than the other, and the consequent inference of arbitrariness, cannot arise. We overrule that argument.

This decision of the Supreme Court has a direct bearing on the point in issue before us, since it deals with the effect of the absence of the time limit on the power of the Government to sanction an improvement scheme framed under an Act dealing with improvement of a town or region as against its power to make a declaration with regard to acquisition generally under Section 6 of the Acquisition Act. We feel we are respectfully bound by this decision.

30. It is true that in Nagpur Improvement Trust v. Vithal Rao (cited supra) the Supreme Court has struck down Sub-clauses (2) and (3) of Clause 10 of the Schedule to the N.I.T. Act in so far as they add a new Clause (3)(a) to Section 23 and a proviso to Section 23(2) of the Land Acquisition Act, as unconstitutional. The questions for consideration there were whether in acquisition for an improvement scheme the criterion for determining the compensation could be different from that under the Land Acquisition Act and whether the owner could be deprived of solatium which he would be entitled under the latter Act. In that case the Supreme Court was not called upon to consider the distinction between the provisions of the N.I.T. Act and the Land Acquisition Act with regard to the time limit for notifying sanction of the draft scheme. That case was confined only to the two question set out above. While in State of Kerala v. T.M. Peter (supra), as seen above, the Supreme Court was required to consider both the issues namely, absence of the time limit and payment of solatium. In upholding the challenge with regard to payment of solatium in T.M. Peter's case (supra), the Supreme Court has relied on its decision in Vithal Rao's case (supra) but has at the same time rejected the contention with regard to the absence of time limit on the ground that:

conceptwise and strategywise, development schemes stand on a separate footing and classification of town planning schemes differently from the routine projects demanding compulsory acquisition may certainly be justified as passed on a rational differentia which has a reasonable relation to the end in view viz. improvement of towns and disciplining their development.

It would, therefore, appear that a distinction has been made between the procedural aspect of the acquisition and the substantive right to compensation. The ratio in Vithal Rao's case (supra) is, therefore, of no avail to the petitioners.

31. In so far Harbans Kaur's case (supra) is concerned, no doubt it supports the petitioners. There the question for consideration before the Full Bench of the Punjab and Haryana Court was whether Section 6 of the Land Acquisition Act, 1984 as amended by the Ordinance and the Act of 1967 was applicable to the notification under Section 42 of the Punjab Town Improvement Act, 1922 which as we have seen above corresponds to Section 45 of the N.I.T. Act. The Court answered it in the affirmative solely relying on the decision of the Supreme Court in Vithal Rao's case (supra). It read the judgment of the Supreme Court in that case as holding that the notice under Section 39 and notification under Section 45 of the N.I.T. Act are to be equated with the notifications under Sections 4 and 6 of the Acquisition Act. With respect, we do not discern any such finding in Vithal Rao's case (supra). As a matter of fact, in that case the Supreme Court was not required to consider relation between Sections 39 and 45 of the N.I.T. Act and Sections 4 and 6 of the Acquisition Act, and hence that Court holding as above did not arise. The Full Bench also rejected the submission that only those provisions of the Land Acquisition Act are applicable to the acquisition under the Punjab Act which were in force on the date when that Act came into force in 1922, on the ground that.

Section 59 and the Schedule to the Act make it abundantly clear that the procedure to be followed for the acquisition is the one laid down in the Land Acquisition Act which is in force at the time of the acquisition and not when the Act was brought into force.

With great respect, as pointed out above, this view does not take into consideration the several modifications which the provisions contained in the body of the Act and the Schedule thereto bring about in the procedure as laid down in the Land Acquisition Act. The Full Bench did not consider the fact that what the legislature did was to incorporate the modified provisions Of the Land Acquisition Act in the Improvement Act, by reference and that any addition to the former would have no effect on the latter. The decision in Vithal Rao's case (supra), cannot be taken as a direct authority on the point under consideration particularly when the decision if T.M. Peter's case (supra) has a direct bearing on this point. With utmost respect, therefore, we do not find ourselves in agreement with the view taken in Harbans Kaur's case (supra). The petitioners have thus failed to substantiate their challenge to the impugned scheme and notification. The result, therefore, is that the petitions stand dismissed and the rule discharged. However, in the circumstances of the case there shall be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //