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P.S. Gill and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 1511 of 1974
Reported inILR1978Delhi515
ActsDelhi Development Act, 1957 - Sections 12
AppellantP.S. Gill and ors.
RespondentUnion of India and ors.
Advocates: G.S. Vohra,; A.S. Puri,; N.N. Goswami,;
Cases Referred(Bahadur Singh v. Union of India).
delhi development act (1957) - section 12--master plan there-under--land acquired situated in cantonment area--whether legal.; the petitioners' land was acquired by the union of india, respondent no. 1. on october 24, 1961. the chief commissioner issued a notification under section 4 of the land acquisition act that 16,000 acres of land is intended to be acquired by the government 'for the planned development of delhi'. on january 2, 1969, the lt. governor issued a notification under section 6 of the land acquisition act.; by a defense department notification dated may 2, 1942, issued in exercise of the powers conferred by sub-section (3) of section 4 of the cantonments act, 1924 the central government included the petitioners' land within the limits of the delhi cantonment. .....avadh behari rohatgi, j.(1) order of reference : the first and the second petitioners claim to be owners of land measuring about 4000sq. yards of field no. 1102 in the triangular part of village (3ari naraina on ring road. this land forms part of delhi cantonment.(2) the petitioners, land was acquired by the union of india, respondent no.1. on october 24, 1961, the chief commissioner issued , notification under s. 4 of the land acquisition act (the acquisitior act) that 16,000 acres of land is intended to be acquired by the .goverrment 'for the planned development of delhi'. on january 2, 1969, the lt. governor issued a notification under s. 6 of the acquisition act.(3) by a defense department notification dated may 2, 1942. issued in exercise of the powers conferred by sub-s. (3) of s. 4.....

Avadh Behari Rohatgi, J.

(1) Order of reference : The first and the second petitioners claim to be owners of land measuring about 4000sq. Yards of field No. 1102 in the triangular part of village (3ari Naraina on Ring Road. This land forms part of Delhi Cantonment.

(2) The petitioners, land was acquired by the Union of India, respondent No.1. On October 24, 1961, the Chief Commissioner issued , notification under S. 4 of the Land Acquisition Act (the Acquisitior Act) that 16,000 acres of land is intended to be acquired by the .Goverrment 'for the planned development of Delhi'. On January 2, 1969, the Lt. Governor issued a notification under s. 6 of the Acquisition Act.

(3) By a defense Department notification dated May 2, 1942. issued in exercise of the powers conferred by sub-s. (3) of s. 4 of the Cantonments Act 1924 t!'e Central Government included the petitioners, land wifhin the limits or the Delhi Cantonment. The petitioners' case is that their land being situated in Delhi Cantonment cannot be acquired by the Central Government for the named public purpose, that is, the planned development of Delhi. It is contended that Delhi Development Act 1957 (the Act) and the Master Plan (the plan) framed there under have no application to the cantonment areas and, thereforee, the acquisition is without authority of law.

(4) In order to appreciaie the point at issue it is necessary to examint the Act and the plan.

(5) Delhi is the metropolis of India. In 1957 the Legislature passed the Delhi Development Act 'to provide for the development of Delhi according to plan,' as the preamble says. The Act set up a corporate body known as the Delhi Development Authority (hereinafter referred to as the 'Authority'). The object of the Authority is 'to promote and secure the development of Delhi according to plan' (s. 6). Development is defined in s. 2(d) of the Act. It means:

'THEcarrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building of land and includes redevelopment;'

(6) The Act requires the Authority to carry out, as soon as may be, a civic survey of and prepare a Master plan for Delhi. The civic survey will furnish a picture of the present state of condition in the city. The plan will be a programme. The plan shall serve as 'a basic pattern of farme-work' within which the proper development of Delhi is to be carried out (s. 7).

(7) The plan was prepared. It came into force on September 1, 1962. The plan divides Delhi into various zones for the purposes of development. It indicates the manner in which the land in each zone is proposed to be used. It also provides that simultaneously with the preparation of the Master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal development plan for each of the zones into which Delhi may be divided (s. 8).

(8) The Master Plan is intended to serve as a 'basic pattern of frame-work' in the words of the Act. The zonal plans are to be prepared within this frame-work. The zonal plans are no doubt subordinate to the Master Plan, but they are the real executents of the Plan. The Master Plan is general in character. It outlines trends and tendencies but never in any instance gets down to brass tacks or details. The Plan gives us an overall design and nothing more. The zonal development plan works out the details. The zonal plan is the local plan. It administers the land and its development in the zone, functioning as It does under the general aegis of the Master Plan.

(9) An image of the future is at the core of any plan. That is the main axis around which planning revolves. Indeed a plan cannot be constructed unless one has a clear conception of the whole of which the problems tackled are merely a part. This is what the Master Plan does. Its framers have followed the poet's advice :

'IMAGEthe whole, then execute the parts

FANCYthe fabric Quite, ere you build ........... .'.

(Robert Browning A Gramairrian's Funeral).

(10) The Master Plan aims at a modern planned capital. Delhi should be beautifully planned and admirably built. It should be a model of urban development. Slums should be cleared, parks established, sanitation and health made a civic concern. In short Delhi should be a matter of civic pride. These are the aims of the planners and developers.

(11) The Plan is based on the concept of land use. It relates residential needs to commercial, industrial and public needs.

(12) The Plan deals with the city of Delhi. The city is after all one of the hallmarks of any civilisation. The Plan is a directional framework for the guidance of city growth. To check the haphazard and unplanned growth of Delhi and to guide the growth of city the Authority has farmed the plan to achieve the objectives of the Act. It does not plan only for the immediate. Fugitive moment is not its chief concern. It has an eye on the future community needs. The Plan looks ahead as far as it is practicable, anticipates change and plans for it. The planners' target is to plan up to 1981 when it is estimated that the population of Delhi will be about 50 lakhs.

(13) The Plan is at once a programme and a prophecy for the orderly development of the city. It is an essay in town planning. The control of the land and its development in and around Delhi is the subject of this essay. It deals with the use, the misuse and nonuse of the land planning controls. It is also a commentary on the turmoil and terment in which that control increasingly finds itself today.

(14) The Plan has a ruling conception and design. Its central conception is that it places limitations on the use of land and buildings. It prescribes a 'land use'. The city has been divided into a number of 'use zones' such as residential, commercial, industrial, recreational etc. The plan enforces the zoning regulations as the architect enforces a common conception for the whole house. This in short is the governing idea and style of the plan.

(15) The fundamental question in this case is : What are the planning limits If the Plan confines itself to the city of Delhi (old city. New Delhi and the ring towns) and excludes the Cantonment from its scope the Central Government have no power or authority to acquire the petitioners' land for the avowed public purpose, namely, the planned development of Delhi.

(16) No one disputes the power of the Government to take private property for a public use without the owner's consent on pay- ment of just compensation. The state has always the authority to take the property of the individual without his consent for the public good. But the right to authorise the exercise of this vast power is wholly legislative. There can be no taking of private property for public use against the will of the owner without direct authority from the legislature. (American Juris-prudence (2nd ed.) vol. 26 p. 643). It is the province of the legislature to prescribe the time, manner and occasion of the exercise of the power of eminent domain. How and by whom the power of eminent domain is to be exercised is for the legislature to prescribe. The executive cannot, without the authority of some statute, arrogate to itself the power to acquire and condemn property for its own use. The enacted law regulates the power. And everyone is bound by the law. Even the most powerful, be it the Authority or the Central Government.

(17) Nor is it in dispute that the planned development of Delhi is a public purpose. 'The Supreme Court has said so in Aflatoon v. Lt. Governor, Delhi : [1975]1SCR802 . It was said : 'the planned development of Delhi had been decided upon by the Government before 1959, namely, even before the Delhi Development Act came into force. It is true that there can be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force. But there was no inhibition in acquiring land for the planhed development of Delhi under the Act before the Master Plan was ready ..........-....'.

(18) After the defense notification of May 2, 1942, the petitioners' land was takenout of the boundaries of Delhi and included in the Cantonment area. That date is a landmark in the history of this case. Now Cantonment is not subject to the concept of 'planned development' as adumbrated in the Act and executed in the Plan.

'PLANNEDDevelopment' is confined to the metropolis of Delhi. Its frontiers do not extend beyond Delhi, which as the Plan shows, includes the old city, the New Delhi, and the ring towns. Cantonment is positively outside its scope. The Act professes address itself to the growing city of Delhi. So does the plan. The Act requires the Authority to carry out as soon as may be a 'civic survey' (s. 7) and thereafter frame a Master Plan. The Plan uses such terms as the 'city', 'metropolitan area', 'capital', 'Metropolitan complex' (see page 5 of the Plan). The word 'metropolis' means the mother city, i chief town, an important city of ' country. The following two massages taken from the plan at random vividly paint af picture of future Delhi as the Plan makers see it.

'Acity is a living organism. To create conditions conducive to healthy social living, the heirarchy of city structure is built from the bottom upwards. The housing cluster is built round the nursery school and the tot-lot. The primary school, the high school, the Community centre and the District centre are the order of the functional tiers around which the community structure is built up. The Central Business District, major educational recreational, cultural and civic centres, will provide the integrating and unifying common interest. Only in a healthy environment, life for the common man can become varied, rich and satisfying in the 'future metropolis' (p. 7). And again: 'HARMONIOUSgrowth and orderly functioning are the first steps in evolving an attractive city. But what will stamp it as a beautiful city is its pleasing architecture. This should not be confined to monumental civic and cultural centres but should pervade the design of all public and private buildings. Modern industrial buildings in attractively landscaped grounds, pleasing shopping centres, simple and beautiftully designed schools and homes and well laid parks can go a long way to raise the city above the humdrum of brick and mortar put together. Well designed and clean streets and street furniture, with minimum of poles, wires and signs will add to the general sense of attractiveness and spaciousness. If these things ate kept in mind, then the appearance of Delhi, as the plan progresses, may well symbolize the life and aspiration of the people who will live there in the coming decades.

(19) This shows that the Plan is concerned with the betterment of life for the citizency of the community and enhancement of its facilities. It is devoted to improving health, education, safety, recreation and better ecological conditions of the general public through nonpolitical means. Actuated by a real sense of civic and social responsibilities the plan makers have envisioned Delhi as it ought to be. Civically aroused by housing conditions and the related problems of industry, transport etc. the planners have tried to control the future. For planning in the last analysis means ability to control the future.

(20) But Cantonment is entirely different. It is not the metropolis. Nor is it a civic establishment. It is a permanent military station. It is the close preserve of those who have taken to the profession of arms. It is the domain of the armed forces. It is beyond and outside the 'urbanisable limits' of Delhi, to use a phrase of the Plan (p. iii). Cantonment is the great divider. The Plan stops at the gates of the Cantonment. Its powerful waves of development stay there. In the map of the Interim General Plan the Cantonment land is shown as 'lands under defense'. The Interim Plan was framed in September 1956. It was the precursor of the statutory Master Plan. At page 63 of the Interim Plan it is expressly stated that 'Cantonment Area is outside our planning jurisdiction'.

(21) In a foot note at p. 26 of the Plan it is said that 'the figures against West Delhi do not include the Cantonment Area, it is estimated that the population of the Cantonment Area would be around 1,00,000 in 1981'. It would thereforee be right to conclude that the Plan does not control the development of the Cantonment.

(22) Suppose the Plan embraces the Cantonment. Suppose the Government acquires the petitioners' land. The question is: What shall it do with it Develop it according to Plan. But the Plan has no programme of its development. The planners and the developers advisedly have not gone that far. They have kept their hands off military stations. The surging waves of development do not enter the Cantonment area, protected as it is by military barricades. In the Interim General Plan they say so in express terms. Admittedly they profess to have nothing to do with the Cantonment. There is good reason for it. The town planners have neither the expertise nor the knowledge of the defense needs. They have neither the means nor the ability. Of martial exploits they know nothing. They were not commissioned to prepare a plan for the defense needs of the country.

(23) The Master Plan is an essay in town planning. A town is different from a cantonment. A cantonment is a class apart. It maintains a distinction between the city dwellers and the military personnel. The Plan is framed in the setting of piping times of peace. It has nothing to do with total war and its requirements. In fact 'it is not prepared for the war and for the hour of battle. It is plain that it is based on the needs of the community and attempts to answer the problem of the ever growing civil population. It is a social document. It aims at social control of land. But for the land in the Cantonment the Plan has no use. Its use is 'undetermined' The map Plan says so. This means that nothing so far has been decided about the future programme. The Authority has no project in hand or contemplation for the Cantonment area. No particular or definite use of land is indicated in the Master Plan. If the use is 'undetermined' there is no appointed destination. What is the Plan to achieve What development will it aim at How will the Authority implement the Plan in the Cantonment? Without a formal plan. Without scheme of development. Is it possible ?

(24) The land will remain frozen) with no end in view. All to no purpose. If the Cantonment area is not within the orbit of the Plan it cannot be developed. If it cannot be developed according to Plan it cannot be acquired. This is my conclusion.

(25) There is a further point. If the- land use is 'undetermined' no zonal plan can be prepared. If no zonal plan can be prepared there can be no development. Land is certainly placed at the disposal of the Government after acquisition but there is no set goal for its development. The argument leads us into a blind alley, a cul-da-sac.

(26) Acquisition of land is the means. Development of land is the end. For acquisition the machinery of the Land Acquisition Act, 1894, can be employed. But development has to be carried out in accordance with the Act. The Act supplies the content of the public purpose. The Plan vivifies it.

(27) In a way the concept 'Planned development of Delhi' regulates the power of eminent domain. In general the right of a nation or state to take private property for public use is eminent or paramount. It is a right that transcends private ownership. It is inherent in the nature of sovereignty that a Government shall have the right to acquire private property for an essential public use even when the owner of the property objects to giving it up. Otherwise a Government could not perform its functions, because private property is needed from time to time for fortifications, navy-yards, post offices, customs houses, school houses, parks, highways and so on. But the overriding fact is that the exercise of the power is controlled by the statute. Here it is the Development Act and the Master Plan framed under the aegis of the Act which are our guiding stars.

(28) The Plan is the broad framework within which development is to take place. And if the Plan does not deal with the development of the Cantonment lands it must be that the Cantonment areas are outside the pale of development. Kit is so' Cantonment land cannot be acquired for the planned development of Delhi. The public purpose is non-existent and fictitious. It is unreal and imaginary. The whole acquisition proceedings are futile and purposeless. Except that the Authority will hold the land in its grasping hands no good will come out, no public purpose will be subserved, for indeed there is no public purpose to be served. It is an acquisition in blank, if I may use that expression.

THEPlan does not provide for the development of Cantonment lands. Their land use is 'undetermined'. We have in the Plan an industrial complex, the housing complex, the sports complex, so on and so forth. But where is the military complex One would expect the Plan to provide for it if the Government acquires land in the Cantonment for the military administration. Delhi has been divided into eight planning divisions and 24 use zones. Planning divisions are further sub-divided into 136 development zones. But nowhere do we find a military zone.

(29) Neither the Authority constituted under s. 3 of the Act nor the Advisory Council constituted under s. 5 has any military representative in its composition. Their constitution is non-military. Representatives of various civic bodies sit in the Authority and the Council. But none froih the Cantonment Board. thereforee, the Authority and Council are purely civil bodies. The Cantonment Board, on the other hand is a body dominated by man engaged in the affairs of war.

(30) Faced with this difficulty counsel for the respondents argued that if the Plan does not provide for development of Cantonment lands the Plan can be modified under s. 11-A of the Development Act. It was said that if there is no member from the military personnel on the Authority the Central Government can always consult the defense department and military experts on the question of development of Cantonment lands. How hollow does the answer ring. If the Authority has neither the expertise nor any provision in the Plan the question is : Why acquire the petitioners' land The counsel for the Union of India and the Authority said : 'We will hold the land in our strong grip. We will decide later what is to be done with it. If necessary we will amend the Plan'. This is no answer. When such arguments arc marshalled against a land owner and his remonstrances go unheeded he turns to courts in the winter of his discontent. To the Government he says 'Take my land by all means but according to the course and procedure prescribed by law.'

(31) In the forefront of their arguments counsel for the Central Government and the Authority heavily relied on a judgment of Prithvi Raj, J. in Bahadur Singh v. Union of India . It was submitted that that decision notices every conceivable argument of theirs and should, unless there are very strong reasons to the contrary, be followed. I have read the detiseion of Prithvi Raj), J. with admiration and enjoyment but I have differed from him with diffidence and regret.

(32) That the Plan can be amended and the purpose can be determined later appealed to Prithvi Raj, J. He said this :

'THISgrievance of the petitioners cannot be supported in view of the fact that it is open to the Central Government to make alterations in the Master Plan as envisaged by subsection (2) of section 11-A of the Development Act. It need hardly be said that the housing activity beneficial to the population is a public purpose and it being open to the Central Govermant by virtue of sub-section (2) of section 11-A of the Development Act to make alterations in the Master Plan, after acquisition of the land, the Central Government, 'if it so chooses to carry out housing activity in the acquired area, can do so by changing the Master Plan.'

(33) With respect I cannot subscribe to this line of reasoning. In fact this is the substance of the Central Government's case and it appears, if I may use an old and familiar simile, to be as full of holes as a colander.

(34) The reason of my disagreement is that under sub-section (1) of s. 11-A of the Act the Authority is empowered to make only those modifications 'which, in its opinion, do not effect important alterations in the character of the Plan and which do not relate to the extent of land uses or the standards of population density.' Any modification of the Plan so as to extend it to the Cantonment area will effect 'important alterations in the character of the plan' and is thus beyond the competence of the Authority. It is true that there are no such restrictions on the powers of the Central Government. (See sub-s. (2) of s. II-A). But the Central Government also cannot alter the Plan so as to extend it to Cantonment, the reason being that the Act does not contemplate any programme of development for the Cantonment area.

(35) No zonal plan has been prepared of zone G in which the Cantonment lands fall, though more than 15 years have passed since the Master Plan came into force. 1981 is not far off. The present Master Plan does not go beyond 1981.

(36) The Cantonment lands are not in the 'development area'. It is true that the fact that actual development is permissible in an area other than a development area with the approval and sanction of the local authority does not preclude the Central Government from acquiring the land for planned development under the Act. S. 12 is concerned only with planned development. It has nothing to do with acquisition of property. Acquisition generally precedes development. For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in s. 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority. This statement of law in Aflatoon's case at page 2084 is perfectly correct. But s. 12(4) provides :

'(4)After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.'

(37) Now that the Master Plan has come into operation Cantonment lands can be developed only according to the Plan, if the Central Government acquires the Cantonment lands. But the Plan has no programme for development of Cantonment lands, as I have said. Again we come back to the end of the road.

(38) Cantonments by themselves are a class apart. A cantonment is a place in or in the vicinity of which any of the regular forces or regular air forces are quartered and which has been declared by notification to be a cantonment for the purposes of the Act in that behalf for the time being in force. The administration of Cantonment areas, almost from their first establishment, has been for obvious military reasons subject to special regulations. The first General Cantonments Act, a consolidating and amending measure was passed in 1889 and repealed a large number of existing Acts and Regulations. The Act of 1889 was followed by another Consolidating and Amending Act in 1910 (Act 15 of 1910) and later by the very elaborate code of 1924, an Act of 292 sections and six schedules (Act 2 of, 1924), which supersedes all previous legislation and is, though it has not itself escaped amendment, the principal Act relating to the subject which is now in force.

(39) In addition to the Act of 1924 which municipalized the administration of the Cantonments there are other laws governing them. For example there is the Indian Works of defense Act, 1903. That Act 'imposes restrictions upon the use and enjoyment of land in the vicinity of works of defense in order that such lands may be kept free from buildings and other obstructions'. It is said that in this 227case a notification under s. 3 of that Act dated December 4, 1962 was issued imposing restrictions on the use and enjoyment of the petitioners' land. Then there are Cantonment Land Administration Rules 1937, framed under s. 280 of the Cantonments Act, 1924 which also control the use and enjoyment of land in the Cantonment area. The object is to show that there are ample laws in the hands of the armed forces for the administration of the Cantonments and control of land, its use and enjoyment.

(40) The Act of 1924 creates a statutory corporate body known as the Cantonment Board. Its duties and discretionary functions are laid down in ss. 116 and 117 of the Act. Now the Cantonments Act 1924 has an important section on the subject of acquisition of immovable property. S. 110 of that Act provides :

'110.Acquisition of immovable property When there is any hindrance to the permanent or temporary acquisition upon payment of any land required by a Board for the purposes of this Act, the Central Government may, at the request of the Board, procure the acquisition thereof under the provisions of the Land Acquisition Act, 1894, and on payment by the Board of the compensation awarded under that Act and of the charges incurred by the Government in connection with the proceedings, the land shall vest in the Board.'

(41) The Cantonments Act is a special Act and also a self-contained one. If the Cantonment Board intends to acquire any land for its purposes it can request the Central Government to acquire the same. This has to be done in accordance with s. 110. Can the Central Government ignore the provisions of the Cantonments Act and acquire land for the purposes of the Cantonment under the Delhi Development Act 1957 That is the simple question that arises in this case.

(42) Two principles are well settled on this subject. The first principle is generalia specialibus non derogant. This principle is examplified by the decision of the Privy Council in Secy. of State v. Hindustan Cooperative Insurance Society Ltd. . The second principle is that if a statute directs a thing to be done in a certain way that thing shall not, even if there be no negative words, be done in any other way. If a statute directs a statutory authority to exercise its powers in a particular manner it must be exercised only in that manner and none other. This principle is illustrated by the decision in .

(43) A combined effect of the said two principles may be stated thus : A general Act must yield to a special Act dealing with a specific subJect-matter and that if an Act directs a thing to be done in a particular way, it shall be deemed to have prohibited the doing of that thing in any other way. Under the Cantonment Act the property has to be acquired in a prescribed manner. If that be so, the Central Government cannot resort to any other method. This is to say, it can acquire land for the Cantonment Board only by resorting to the provisions of the Cantonments Act.

SECTION 6 of the Act says :

'....nothing contained in this Act shall be construed as authorising the disregard by the Authority of any law for the time being in force.'

(44) Cantoments Act is a law in force. The Authority cannot disregard it. Cantonment Act has elaborate provisions in Ch. Xi (sections 178A to 197) for control over buildings and land in the Cantonment. What more is needed ?

(45) To sum up. The validity of acquisition has to be tested on the touchstone of the Plan. The Plan is the 'basic pattern' of developmentThere can 'be no unplanned development. Development has to be in accordance with the Plan. The Central Government defends the acquisition on the ground that though the Plan does not provide for the Cantonment development at present it can be amended in future under the Act. I have examined this argument and rejected it. The power to amend the Man does not purge the acquisition of its 'vice'. Acquisition is galvanized by the need for development. If on some future day the Plan provides for the Cantonment development the Authority can always request the Central Government toacquire the required land under s. 15 of the Act. Under that section the Central Government has the power to acquire land 'for the purpose of development'. Under sub-section (2) where any land has been acquired by the Central Government, that Government may, after it has taken possession of the land, transfer the land to the Authority 'for the purpose for which the land has been acquired' on payment, by the Authority. This reinforces the argument that development has to be in accordance with the Act. I am, thereforee, of the opinion that acquisition of the petitioners' land is without the authority of law.

(46) But I do not decide this case. Judicial propriety forbids me. Counsel for the Government says that I ought not to differ from another learned single judge of this court and if I do differ I should refer this case to the division bench as Bahadur Singh's case (supra) is under appeal. I have accepted this advice. Judicial comity demands that to avoid uncertainty the law should be authoritatively settled. I have accordingly refrained from deciding this case. But I have ventured to state my reasons for disagreement, differ as I do, with all deference to the learned judge from the view he took in Bahadur Singh's case.

I would, thereforee, refer this case to the division bench and propose that it be heard with L.P.A. No. 115 of 1975 (Bahadur Singh v. Union of India).

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