Supreme Court of India
INDORE DEVELOPMENT AUTHORITYversusBURHANI GRIH NIRMAN SAHAKARI SANSTHA MARYADIT SNEH NAGAR AND OTHERS
- Citation
- 2023 INSC 200
- Decided
- 3 March 2023
- Disposal
- Appeal(s) allowed
- Bench
- M R SHAH
Holding
The scheme had not lapsed, the Collector’s delegated authority under section 5A was valid, and the release of land was not arbitrary, so the acquisition proceedings stand.
Summary
The Indore Development Authority (IDA) prepared Scheme No. 97 under the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 and published the final scheme on 8 June 1984. Within three years it negotiated with landowners, failed, and then sought acquisition of the land under the Land Acquisition Act, 1894, leading to notifications under sections 4 and 6. The High Court quashed the scheme on three grounds: (i) the scheme had lapsed under section 54 of the Adhiniyam, (ii) the State Government had not properly delegated power to the Collector for decisions under section 5A of the 1894 Act, and (iii) the release of a large portion of land was arbitrary and violated Article 14. The Supreme Court held that substantial steps taken within three years amount to commencement of implementation, so the scheme did not lapse; the State Government’s order delegating powers to the Collector sufficed for the Collector to act as the appropriate government under section 5A; and the release of land was based on valid reasons and did not prejudice the scheme’s integrity. Consequently, the High Court’s judgment was set aside and the appeal allowed.
Issues considered
- The scheme’s lapse under section 54 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973.
- Whether the State Government’s delegation of power to the Collector satisfied the requirements of section 5A of the Land Acquisition Act, 1894.
- Whether the release of a substantial portion of land amounted to arbitrary or discriminatory action violating Article 14 of the Constitution.
- The validity of the acquisition proceedings under the Land Acquisition Act, 1894.
Legislation cited
- Land Acquisition Act, 1894s. 17, s. 4, s. 5A, s. 6
- Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973s. 50, s. 54, s. 56, s. 57, s. 58
- Urban Land (Ceiling & Regulation) Act, 1976s. 20
Subjects
land acquisitionscheme lapseMadhya Pradesh Nagar Tatha Gram Nivesh Adhiniyamsection 54section 5A delegationArticle 14 discriminationimplementation of development schemepublic purposedeclaration under section 6release of land
Judgment
84 [2023]
SUPREME COURT 2 S.C.R. 84
REPORTS [2023] 2 S.C.R.
A INDORE DEVELOPMENT AUTHORITY
v.
BURHANI GRIH NIRMAN SAHAKARI SANSTHA MARYADIT
SNEH NAGAR AND OTHERS
B (Civil Appeal No. 5071 of 2022)
MARCH 03, 2023
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973
– ss. 50 and 54 – Land Acquisition Act, 1894 – ss.4, 5A and 6 –
C
Indore Development Authority (IDA) passed a resolution u/s.50 of
Act, 1973, declaring its intention to frame a residential scheme
providing for other connected land uses – IDA published the said
scheme – State Government by order delegated its power to the
District Collector to act as Under Secretary – IDA started mutual
D negotiations with the landowners for procurement of their land for
the scheme – Mutual negotiations failed – IDA moved the Collector
for acquisition of the land – Notification u/s.4 of the 1894 Act was
published, and report u/s.5A of the 1894 Act was filed before the
Collector for approval – Declaration u/s.6 was published – In year
1997, some lands were released from scheme – The notifications
E
u/s.4 and s.6 of the 1894 Act was challenged before the Single
Judge of the High Court, which in turn quashed the scheme framed
by the IDA (on the ground that the same had lapsed in view of s.54
of the 1973 Act) as well as the land acquisition proceedings initiated
by the State Government – The IDA preferred appeals before the
F Division Bench of the High Court, which confirmed the order of the
Single Judge – On appeal, held: Within three years various steps
were taken for implementation of the scheme including the steps to
acquire the land by negotiations and thereafter approaching the
State Government to acquire the land, the High Court has erred in
declaring that the scheme has lapsed – High Court has adopted too
G
narrow a meaning while interpreting s.54 of 1973 Act – Further
held, merely because s.5A has not been mentioned in the order of
State Government delegating its power, the entire acquisition
proceedings cannot be declared illegal – When the Collector has
exercised the power of the appropriate Government and a
H
84
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 85
SAHAKARI SANSTHA MARYADIT SNEH NAGAR
declaration u/s.6 has been issued after considering the report on A
the objections u/s.5A, the High Court has seriously erred in quashing
the entire acquisition proceedings – Also, it cannot be said that the
release of the land was arbitrary and/or with an object of undue
favour to those persons whose lands have been released – Release
of the land which according to the authority was for valid reasons
B
or valid grounds has not prejudiced or affected the integrity of the
scheme – As the integrity of the scheme remains the same, thus, the
finding of High Court is unsustainable.
Allowing the appeal, the Court
HELD:1. When within three years various steps were taken C
for implementation of the scheme including the steps to acquire
the land by negotiations and even thereafter on failure to acquire
the land by negotiations approaching the State Government to
acquire the land under the Land Acquisition Act, the High Court
has erred in declaring that the scheme has lapsed under section
54 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, D
1973. The High Court has adopted too narrow a meaning while
interpreting and/or considering section 54 of the Adhiniyam. [Para
11][113-G-H]
2. So far as quashing and setting aside the entire acquisition
proceedings including sections 4 & 6 notifications issued under E
the provisions of the Land Acquisition Act with respect to the
lands in question on the ground that there was no proper
delegation of power to the Collector with regard to Section 5A of
the Act, is concerned, it is required to be noted that in the present
case, the State Government vide its letter dated 22.3.1985 F
delegated its power to the District Collector as Deputy Secretary
of the Revenue Department and to the Commissioner of the
division to act as Secretary of the Revenue Department and to
adjudicate matters related to land acquisition by exercising powers
given under Sections 4, 5, 6 and 17 of the Act, 1894. Merely
because Section 5A has not been mentioned in the said order, G
the entire acquisition proceedings including notifications under
Sections 4 & 6 of the Act, 1894 and more particularly the
declaration which was issued after considering the report/
objections under section 5A cannot be declared illegal. [Para
12][114-B-D] H
86 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 3. A declaration under Section 6 of the Act, 1894 could be
issued only after the report submitted under Section 5A has been
considered by the appropriate government. Under Section 5A of
the Act, the objections are required to be considered by the
Collector, i.e., the Collector of a District including a Deputy
Commissioner and any other officer especially appointed by the
B
appropriate government to perform the functions of a Collector
under the Land Acquisition Act. In the present case, apart from
being specially appointed by the appropriate government to
perform the functions of a Collector, the authority who has
considered the objections under Section 5A is the Collector of a
C District. Even the State Government vide its circular dated
6.03.1987 conf erred power on the Deputy Collectors for
exercising the functions of the Collector for acquisition of the
land in their respective areas. [Para 12.1][114-D-F]
4. When the Collector has exercised the power of the
D appropriate government and a declaration under section 6 of the
Act has been issued after considering the report on the objections
under Section 5A of the Act, the High Court has seriously erred
in quashing and setting aside the entire acquisition proceedings
on the aforesaid ground. [Para 12.3][116-F]
E 5. So far as the third ground on which the scheme and the
entire acquisition proceedings have been set aside, namely, the
huge and big chunk of land out of the total land sought to be
acquired by the Development Authority which has been released,
is concerned, it is required to be noted that out of the total land
acquired, 68.11% of the land has been developed and 31.89%
F has not been developed due to interim orders passed by the
Courts. Even otherwise, it is required to be noted that out of the
total land covered under the scheme, i.e., 332.616 hectares
(277.853 hectares of land acquired through award plus 44.763
hectares of the land owned by the Authority), land has been
G released for various purposes to the extent of 54.660 hectares
and still the remaining land would be to the extent of 267.956
hectares out of which the land involved in the present appeals
would be to the extent of 85.430 hectares. According to the
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 87
SAHAKARI SANSTHA MARYADIT SNEH NAGAR
Development Authority, 111.156 hectares of the land covered A
under the scheme was released in favour of Housing Cooperative
Societies because the object of the housing societies and the
scheme was the same. According to the Development Authority,
the Authority/State Government had released the land only of
those societies who had either developed or started development
B
of colonies or had acquired the title to the land or had obtained
exemption under section 20 of the Urban Land (Ceiling &
Regulation) Act, 1976 before publication of the final scheme under
section 50(7) of the Adhiniyam. According to the Development
Authority, 104.524 hectares of land covered under the scheme
which was released from the scheme, the land use of the said C
land was either agricultural or regional park. Release of the land
having area of 46.116 hectares of land was in response to
objections under section 5A of the Act because of certain reasons
like existing houses, religious places, different land use etc. [Para
13][116-G-H; 117-A-D]
D
6. It cannot be said that the release of the land was arbitrary
and/or with an object of undue favour to those persons whose
lands have been released. As rightly submitted that even
otherwise such lands were to be acquired for residential, park
and industrial purposes, release of the land which according to
the authority was for valid reasons or valid grounds has not E
prejudiced or affected the integrity of the scheme. The end result
of the release of some land is that the total area of the scheme is
lesser to that extent but the integrity of the scheme remains the
same. At this stage, it is required to be noted that some of the
lands have already been used by the authority for the purpose of F
a park which is used for the benefit of local people. Under the
circumstances, the third ground on which the scheme and the
entire acquisition proceedings have been quashed by the High
Court does not stand on its legs and the said finding is
unsustainable. [Para 13.1][117-E-G]
G
Rajasthan State Industrial Development and Investment
Corporation v. Subhash Sindhi Cooperative Housing
Society, Jaipur (2013) 5 SCC 427 : [2013] 4 SCR 978;
Union of India v. Bal Ram Singh (1992) 2 Supp SCC
136; Sube Singh v. State of Haryana (2001) 7 SCC
H
88 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 545; Jagdish Chand v. State of Haryana (2005) 10 SCC
162; Dharam Pal v. State of Haryana (2009) 2 SCC
397 : [2008] 17 SCR 564 – referred to.
Sanjay Gandhi Grih Nirman Sahakari Sanstha
Maryadit v. State of M.P. & Others AIR 1991 MP 72;
B Adarsh Nagar Grih Nirman Sahkari Sansthan
Maryadit, Bhopal v. State of M.P. and Others 2004 (1)
M.P.L.J. 539 : 2003 SCC OnLine MP 329 – referred
to.
Case Law Reference
C [2013] 4 SCR 978 referred to Para 3.11
(1992) 2 Supp SCC 136 referred to Para 3.11
(2001) 7 SCC 545 referred to Para 3.11
(2005) 10 SCC 162 referred to Para 3.11
D
[2008] 17 SCR 564 referred to Para 3.11
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5071
of 2022.
From the Judgment and Order dated 28.08.2014 of the High Court
E of Madhya Pradesh at Indore in WA No. 873 of 2008.
With
Civil Appeal Nos. 5099, 5074, 5075, 5076, 5078, 5079, 5081, 5080,
5082, 5084, 5085, 5087, 5088, 5090, 5091, 5093, 5092, 5094, 5095, 5096,
5097, 5098, 5101, 5103, 5104, 5105, 5106, 5077, 5083, 5086, 5089, 5100
F and 5102 of 2022.
Balbir Singh, ASG, Sanjay Kapur, Ms. Megha Karnwal, Arjun
Bhatia, Aashish Kumar, Ms. Akshta Joshi, Lalit Rajput, Naman Tandon,
Samarvir Singh, Prasenjeet Mohapatra, Shyam Gopal, Ms. Monica
Benjamin, Prahlad Singh, Advs. for the Appellant.
G
Basava Prabhu S. Patil, N. K. Mody, Subash Samvatsar, R.N.
Mishra, Sr. Advs., Ajay Choudhary, Prabudh Gaur, Mrs. Pragya Baghel,
R.N. Pareekh, Mishra Saurabh, Ms. Aarushi Singh, Sunny Choudhary,
Puneet Jain, Ms. Christi Jain, Umang Mehta, Ms. Shruti Singh, Yogit
Kamat, Mann Arora, Ms. Shipra Singh, Ms. Pratibha Jain, Nitin S.
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 89
SAHAKARI SANSTHA MARYADIT SNEH NAGAR
Tambwekar, Archit Katlana, Seshatalpa Sai Bandaru, Niraj Sharma, A
Sumit Kumar Sharma, Ms. Mahima Sharma, Ms. Tanya Raizada, Mayank
Kshirsagar, Mahendra Thakur, Sudhir Shah, Balaji Srinivasan, Ms. Mrinal
Elker Mazmudar, Saurabh Singh, Abhijeet Pandove, Ms. Anuradha
Mishra, Rahul Kaushik, Hitesh Kumar Sharma, S.K. Rajora, Akhileshwar
Jha, Deepak Namdari, K. Rajeev, Advs. for the Respondents.
B
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Delay condoned. Substitution allowed. Abatement is set aside.
Cause title be amended accordingly.
C
1A. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 28.08.2014 passed by the High Court of Madhya
Pradesh at Indore in Writ Appeal No. 873 of 2008 and other connected
writ appeals, by which the Division Bench of the High Court has dismissed
the said appeals, confirming the common judgment and order dated
10.12.1998 passed by the learned Single Judge whereby the learned D
Single allowed the respective writ petitions against finalisation of Scheme
No. 97 under Section 50 of the Madhya Pradesh Nagar Tatha Gram
Nivesh Adhiniyam, 1973 (hereinafter referred to as the ‘Adhiniyam’)
and the subsequent land acquisition proceedings undertaken by the State
of Madhya Pradesh under Sections 4 and 6 of the Land Acquisition Act, E
1894 (hereinafter referred to as the ‘Act, 1894’), the Indore Development
Authority has preferred the present appeals.
2. The facts leading to the present appeals in a nutshell are as
under:
The Indore Development Authority (hereinafter referred to as F
the ‘IDA’) passed a Resolution under Section 50(1) of the Adhiniyam on
13.03.1981 declaring its intention to frame Scheme No. 97 – a residential
scheme providing for other connected land uses. For the sake of
convenience, Scheme No. 97 was divided into four parts, i.e., Part I, II,
III & IV. The declaration of intention of the said scheme was further
G
published in the form of public notice on 10.07.1981. Vide its order dated
24.12.1983, the State Government empowered all the Collectors and
Divisional Commissioners to act as ex-officio Deputy Secretaries of the
Department of Revenue, Government of Madhya Pradesh and ex-officio
Secretary of the said Government respectively, for disposal of the cases
H
90 SUPREME COURT REPORTS [2023] 2 S.C.R.
A under Sections 4, 5 6 & 17 of the Act, 1894. After completing various
formalities, the IDA published Scheme No. 97 on 08.06.1984 as required
under Section 50(7) of the Adhiniyam and the Scheme was also published
in the Official Gazette on the said date.
2.1 According to IDA, the State of Madhya Pradesh in exercise
B of its powers conferred under Article 166(2) & (3) of the Constitution of
India and in accordance with the Madhya Pradesh Government Rules
of Business framed by the Governor, Madhya Pradesh, delegated its
power to the District Collector to act as Under Secretary, Revenue
Department, Government of Madhya Pradesh. Vide its order dated
6.03.1987, the State Government gave powers to the Deputy Collectors
C for exercising functions of the Collectors for acquisition of land in their
respective areas.
According to IDA, as per section 56 of the Adhiniyam, the IDA
started mutual negotiations with the landowners for procurement of their
land for Scheme No. 97. Since the mutual negotiations failed, the IDA
D vide its letter dated 4.06.1987 moved the Collector for acquisition of the
land.
2.2 Notification under section 4 of the Act, 1894 in respect of the
land for Scheme No. 97 was published in the Official Gazette and the
notification was then also published in the two daily Hindi Newspapers
E on 14.08.1987. Further, the publication was affixed on different dates
and lastly on 09.10.1987.
2.3 The Deputy Collector and Land Acquisition Officer filed its
report under section 5A of the Act, 1894 before the Collector for approval
and also submitted the notification under section 6 of the Act, 1894 for
F signature of the Collector. The same was duly approved by the Collector.
2.4 The Deputy Collector filed its reports in respect of village
Tejpur Garbari and also in respect of village Pipaliyarao under section
5A of the Act, 1894 and also filed an approval order of the Collector, for
issuance of notification under section 6 of the Act, 1894. Declaration
G under section 6 of the Act, 1894 was published in the Official Gazette on
7.10.1988 and the said declaration was then also published in daily
newspapers on different dates and lastly on 16.12.1988. The Collector
then submitted its report to the Commissioner under section 5A of the
Act, 1894 with the recommendation to reject the objections and to grant
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 91
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
approval for issuance of notification under section 6 of the Act, 1894, A
which was approved by the Commissioner vide its letter dated 6.12.1988.
2.5 After the publication of the declaration under section 6 of the
Act, 1894 and during the pendency of the land acquisition proceedings
before the Collector, some of the landowners whose lands were acquired
for Scheme No. 97 filed writ petitions before the High Court and obtained B
interim orders against dispossession of their land. Some writ petitions
were filed after the declaration of the award. The Collector, Indore made
his award in respect of the acquired land on 6.03.1991. That the original
writ petitioners filed a Miscellaneous Petition before the learned Single
Judge of the High Court challenging the notifications under sections 4 &
6 of the Act, 1894 and prayed that the entire acquisition proceedings be C
quashed. The original writ petitioners also prayed that Scheme No. 97
prepared by the IDA be quashed and their land be ordered to be deleted
and released therefrom. That in the year 1997, some lands were released
from Scheme No. 97. The IDA during the pendency of the writ petitions
filed a clarification regarding land release out of Scheme No. 97 pointing D
out the justification. The aforesaid release was sought challenging Scheme
No. 97 on the following grounds:
(i) That the Scheme framed by the appellant under Section 50(7)
of the Adhiniyam was not implemented within three years and
therefore it stood lapsed, by virtue of Section 54 of the Adhiniyam. E
(ii) That the notification issued under Section 6 was not in
accordance with law inasmuch as the objections invited under
Section 5-A were not decided by the Competent Authority. There
was also a plea of hostile discrimination inasmuch as various parcels
of lands were released from acquisition indiscriminately. F
2.6 The learned Single Judge by a common judgment and order
dated 10.12.19998 allowed the respective writ petitions and quashed the
Scheme framed by the IDA as well as the land acquisition proceedings
initiated by the State Government, mainly on three grounds, namely,:-
(i) The objections invited under Section 5-A of the L.A. Act were G
not decided by the Competent Authority, i.e., State Government.
(ii) There was hostile discrimination against the respondents by
the appellant and the State of Madhya Pradesh inasmuch as the
various parcels of land owned by several other persons and
societies forming part of the same scheme were released by the H
92 SUPREME COURT REPORTS [2023] 2 S.C.R.
A appellant violating the fundamental rights of the respondents as
guaranteed under Article 14 of the Constitution of India.
(iii) That in view of Section 54 of the Adhiniyam, the Scheme
lapsed as it was not implemented within three years from the date
of its publication as provided under Section 54 of the Adhiniyam.
B 2.7 Feeling aggrieved and dissatisfied with the common judgment
and order passed by the learned Single Judge, quashing and setting aside
the entire acquisition proceedings as well as quashing and setting aside
Scheme No. 97 on the ground that the same had lapsed in view of Section
54 of the Adhiniyam, the IDA preferred the writ appeals before the
C Division Bench of the High Court. By the impugned common judgment
and order, the Division Bench of the High Court has dismissed the said
appeals, which has given rise to the present appeals.
3. Shri Balbir Singh, learned Additional Solicitor General of India,
assisted by Shri Sanjay Kapur, learned counsel, appearing on behalf of
D the IDA has vehemently submitted that in the facts and circumstances
of the case, the learned Single Judge as well as the Division Bench of
the High Court have materially erred in quashing and setting aside the
entire acquisition proceedings as well as Scheme No. 97 framed under
the Adhiniyam.
E 3.1 It is further submitted by the learned Additional Solicitor General
that the learned Single Judge allowed the writ petitions declaring Scheme
No. 97 as illegal and invalid and quashed and set aside the entire acquisition
proceedings under the Act, 1894, mainly on three grounds, namely:-
(i) That there was no delegation of power by the State Government
F with regard to Section 5-A of the Act, 1894 to Collector;
(ii) That IDA failed to take substantial steps to implement the
scheme within a period of three years from the date of final
publication as envisaged under section 54 of the Adhiniyam; and
(iii) That huge and big chunk of land, out of the total land sought to
G be acquired by the Authority, has been released.
3.2 Insofar as the finding recorded by the learned Single Judge,
as confirmed by the Division Bench, that there was no delegation of
power to the Collector with respect to Section 5-A of the Act, 1894 is
concerned, learned Additional Solicitor General has submitted as under:
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 93
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
(i) That Section 5-A of the Act, 1894 provides for inviting and A
hearing of objections from the landowners by the appropriate
authority and then preparation of report thereof. It is
submitted that insofar as the decision on the report by the
Appropriate Government is concerned, it is taken under
section 6 of the Act, 1894. Section 5-A merely declares
B
that the decision of the Appropriate Government on the
report would be final. Thus, Section 5-A does not require
any further delegation of power. The decision on the report
is required to be taken under Section 6 of the Act, 1894.
(ii) Further, it is submitted that the State Government vide its
letter dated 22.03.1985 delegated its power to the District C
Collector to act as Dy. Secretary of the Revenue
Department and to the Commissioner of the Division, to
act as Secretary of the Revenue Department, to adjudicate
matters related to land acquisition by exercising powers given
under Sections 4, 5, 6 and 17 of the Act, 1894. A bare D
reading of Sections 4 to 6 of the Act, 1894 would reveal
that the power given to the District Collector and to the
Commissioner under these sections are consequential and
cannot be separated inasmuch as one section leads to
another, which finally culminates in the passing of declaration
under Section 6 of the Act, 1894. E
(iii) Further, a declaration under section 6 of the Act, 1894 could
be passed only after the report submitted under section 5-
A has been considered by the appropriate government. It is
respectfully contended that even though the order dated
22.03.1985 does not specifically mention Section 5-A, the F
same is implied in the said order.
(iv) Under section 5-A of the Act, the objections are required
to be considered by the Collector. Section 3(c) of the Act,
1894 defines Collector as under:
G
“3(c) The expression Collector means the Collector of
a District, and includes a Dy. Commissioner and any
Officer specially appointed by the appropriate Govt. to
perform the functions of a Collector under this Act.”
H
94 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 3.3 It is contended that in the present case, apart from being
specially appointed by the appropriate Government to perform the
functions of a Collector, the Authority who has considered the objections
u/s 5-A is the Collector of a District. The definition of the Collector is an
inclusive one and means the Collector of the District and includes Dy.
Commissioner as well. Further the State Government vide its circular
B
dated 06.03.1987 conferred power to the Dy. Collector for exercising
functions of the Collector for acquisition of land in their areas.
3.4 It is further contended that Article 166 of the Constitution of
India provides that all executive action of the Government of a State
shall be expressed to be taken in the name of the Governor and orders
C and other instruments made and executed in the name of the Governor
shall be authenticated in such manner as may be specified in rules to be
made by the Governor, and the validity of an order on instruction which
is so authenticated shall not be called in question on the ground that it is
not an order or instrument made or executed by the Governor.
D 3.5 It is submitted that therefore the learned Single Judge as well
as the Division Bench of the High Court have materially erred in quashing
and setting aside the entire acquisition proceedings on the ground that
there was no delegation of power by the State Government with regard
to Section 5-A of the Act, 1894 to the Collector.
E It is further submitted that even the learned Single Judge specifically
observed and held that except for technical irregularity, the award cannot
be declared invalid.
3.6 As regards the quashing and setting aside Scheme No. 97 on
the ground that IDA failed to take substantial steps to implement the
F scheme within three years from the date of publication as per section 54
of the Adhiniyam, it is submitted that section 54 of the Adhiniyam provides
that “if the Town and Country Development Authority fails to commence
implementation of the Town Development Scheme within a period of
three years from the date of notification of the final scheme under section
G 50, it shall, on the expiration of the said period of three years, lapse.”
3.7 It is submitted that in the present case the substantial steps
were taken within three years. That before the expiration of three years
when the negotiations failed, the State Government immediately issued
the notification under Section 4 of the Act, 1894.
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 95
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
3.8 It is next submitted that in the present case declaration of A
intention to prepare a town development scheme under section 50(1)
was issued on 13.03.1981; publication of the said declaration under Section
50(2) was carried out on 10.07.1981; final development scheme was
published in the Official Gazette under section 50(7) of the Adhiniyam
on 08.06.1984; the State Government was requested to acquire the land
B
on 4.06.1987, i.e., within three years of the final publication. It is submitted
that substantial steps taken within these three years are as under:
C
D
E
3.9 It is submitted that in view of the timeline set out above, the
learned Single Judge has completely erred in declaring the scheme as
having lapsed on the ground of non-implementation of the scheme under F
section 54 of the Adhiniyam. It is submitted that the words “commence
implementation” occurring in Section 54 do not mean completion of
implementation of the scheme. It is submitted that the only reasonable
interpretation of Section 54 would be that some steps should be taken by
the Authority for implementation of the scheme and must have an intention
to implement the scheme. G
In support of his above submission, reliance is placed on the
decision of the Madhya Pradesh High Court in the case of Sanjay Gandhi
Grih Nirman Sahakari Sanstha Maryadit v. State of M.P. & Others,
reported in AIR 1991 MP 72. It is submitted that a special leave petition
H
96 SUPREME COURT REPORTS [2023] 2 S.C.R.
A against the said decision has been dismissed by this Court. It is submitted
that in the aforesaid decision, it was held as under:
“S. 54 does not appear to apply when substantial steps have been
taken within three years to implement the scheme. The Court had
also taken into consideration S. 56, 57 and 58 of the Adhiniyam
B and has taken a view that the words ‘fails to implement’ would
means failure to take any substantial steps for the implementation
of the scheme and if no such step is taken within three years the
scheme will lapse…”
It is submitted that therefore the learned Single Judge as well as
C Division Bench of the High Court have materially erred in declaring the
scheme as having lapsed on the ground of non-implementation of the
scheme under Section 54 of the Adhiniyam.
3.10 Without prejudice to the above, it is further submitted that
Section 54 of the Adhiniyam is clear in its terms that in case the
D Development Authority failed to commence implementation of the scheme
(which means taking substantial steps) within the period of three years
from the date of notification, the scheme shall lapse but the acquisition
shall not. It is averred that once the land is acquired, it vests in the
Government and once it is vested in the Government, it cannot be
transferred back and it becomes the property of the Government.
E
3.11. As regards the finding recorded by the learned Single Judge
on hostile discrimination and quashing and setting aside the entire
acquisition proceedings on the ground that a huge and big chunk of land,
out of the total land, has been released and therefore to continue with
the acquisition with respect to rest of the land is discriminatory and violative
F of Article 14 of the Constitution of India, it is submitted that the learned
Single Judge as well as the Division Bench have not properly appreciated
the grounds on which the lands were released. That the learned Single
Judge as well as the Division Bench have materially erred in not properly
appreciating the fact that the release of the land would depend on the
G requirement. It is submitted that it is settled law that where the land is
acquired for establishing a residential, commercial, or industrial area and
the application for release of the land reveals that the land has been
used for the same purpose, the Government may release the land, if its
existence does not by any means hinder development as per the
notification for acquisition. Reliance is placed on the decisions of this
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 97
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
Court in the cases of Rajasthan State Industrial Development and A
Investment Corporation v. Subhash Sindhi Cooperative Housing
Society, Jaipur, (2013) 5 SCC 427; Union of India v. Bal Ram Singh,
1992 Supp (2) SCC 136; Sube Singh v. State of Haryana, (2001) 7
SCC 545; Jagdish Chand v. State of Haryana, (2005) 10 SCC 162;
and Dharam Pal v. State of Haryana, (2009) 2 SCC 397.
B
3.12 It is next contended that in the present case, the lands were
acquired for residential, park and industrial purposes. That hence the
release of land has not prejudiced or affected the integrity of the scheme.
That the end result of the release of some land was that the total area of
the scheme has become lesser to that extent but the integrity of the
scheme remains the same. C
3.13 It is submitted that as such in the present case the IDA filed
a clarification giving reasons regarding land released out of Scheme No.
97. That however the learned Single Judge failed to appreciate those
reasons.
D
3.14 It is further submitted that the following were the reasons to
release some of the land proposed to be acquired:
a. 111.156 hectors of land were released in favour of Housing
Cooperative Societies - As stated above that this release has no
impact on the implementation of the scheme because the object E
of the said housing societies and of the scheme was the same. It
may further be pointed out that the Authority/ State Govt. had
released the land only of those societies who had either developed
or started development of colony or had acquired the title to the
land or had obtained exemption u/s 20 of the Urban Land (Ceiling
& Regulation) Act, 1976 before publication of final scheme u/s 50 F
(7) of the Adhiniyam. It may be submitted that the Respondents
have not fulfill any of these conditions, therefore, it cannot be said
that they are similarly situated with the other Housing Societies.
In case of R-1/ Burhani Nagar Society, admittedly the
exemption u/s 20 of the Urban Land Ceiling Act was granted to G
the Burhani Nagar on 30.09.1988 i.e., much after the final
declaration of the scheme u/s 50 (7) of the Adhiniyam and also
after the publication of notification u/s 4 of the Act. It is also
pertinent to mention that the said Burhani Nagar Society had
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98 SUPREME COURT REPORTS [2023] 2 S.C.R.
A purchased the land by a registered sale deed on 03.10.1988 i.e.,
after publication of notification u/s 4 of the Act.
b. 104.524 hectors of land released from the scheme – As stated
above, the land use of the said land was either agricultural or
regional park.
B c. Release of land having area 46.116 hectors - Aforesaid land
was released by the Land Acquisition Officer while considering
the objections u/s 5-A of the Act because of certain reasons like
existing houses, religious places, different land use etc.,
3.15 It is further submitted by Shri Balbir Singh, learned ASG that
C in the present case some of the lands have been acquired and in fact
used for the park.
3.16 Making above submissions, it is prayed that the present appeals
be allowed and the impugned common judgment and order passed by
the Division Bench dismissing the writ appeals and the common judgment
D and order passed by the learned Single Judge, quashing and setting aside
the entire acquisition proceedings under the Land Acquisition Act as
well as quashing and setting aside Scheme No. 97 under section 54 of
the Adhiniyam, be quashed and set aside. It is submitted that if the
impugned judgment and order passed by the High Court is not interfered
E with, the same shall affect the development of the area under the scheme,
which may be against public interest.
4. All these appeals are vehemently opposed by Shri Basava
Prabhu S. Patil, Shri Subash Samvatsar, Shri N.K. Mody, learned Senior
Advocates, Shri Puneet Jain and Shri Mayank Kshirsagar, learned counsel
F appearing on behalf of the respective original writ petitioners.
4.1 Shri Punit Jain, learned counsel appearing on behalf of the
respective contesting respondents in Civil Appeal No.5099/2022 @ SLP
No. 34880/2014, Civil Appeal No. 5101/2022 @ SLP No. 34907/2014,
Civil Appeal No. 5103/2022 @ SLP No. 34879/2014 and Civil Appeal
No. 5077/2022 @ SLP 34855/2014 has vehemently submitted that in the
G
facts and circumstances of the case neither the learned Single Judge
nor the Division Bench of the High Court has committed any error in
quashing and setting aside the scheme(s) and acquisition proceedings
with respect to the lands in question.
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 99
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
4.2 It is submitted by Shri Punit Jain, learned counsel appearing A
on behalf of the original writ petitioners that the learned Single Judge as
well as the Division Bench of the High Court has struck down the scheme
as well as the acquisition, inter alia, on the following grounds: -
(i) That the scheme has lapsed in view of section 54 of the
M.P. Nagar Tatha Gram Nivesh Adhiniyam. B
(ii) That a substantial portion of the lands forming part of the
two schemes 97(2) and 97(4) had been released and
continuing the scheme thereafter and acquiring the lands
of the other landowners (i.e., the respondents herein) is an
act of hostile discrimination being in violation of Article 14. C
(iii) That there was no delegation of the power of the State
Government under section 5A to the Commissioner and
hence, the decision for acquisition of land under section 5A
is not by a proper authority. Therefore, the acquisition is
vitiated. D
4.3 It is contended that in the present case the date of publication
of final scheme under section 50(7) is 08.06.1984. No steps were taken
by the IDA to implement the scheme for approximately three years,
except engaging in so called negotiations with the original land owners
to acquire the land by mutual consent. The notification under Section 4 E
of the Land Acquisition Act (LA Act) was issued on 24.07.1987 and the
declaration under Section 6 of the LA Act was made on 03.10.1988. It is
submitted that the award came to be declared under Section 11 of the
LA Act on 06.03.1991. That therefore, when the final scheme No. 97
was published on 08.06.1984, the IDA was expected to “implement” the
scheme within the period of three years from the said date. F
4.4 It is further contended that the word “implement” appearing
in section 54 of the Adhiniyam must be understood narrowly and must
therefore, mean full and complete implementation. It is submitted that in
any case, the word “implement” ought to be understood to mean
“substantial implementation.” G
4.5 It is submitted that in the present case, the learned Single
Judge did not accept the narrow view and proceeded to test the actions
of the IDA on the “substantial implementation” principle. It is submitted
that the High Court has found that sending a request for acquisition of
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100 SUPREME COURT REPORTS [2023] 2 S.C.R.
A land, four days before the deadline did not satisfy the “substantial
implementation” test.
4.6 It is next submitted that the word “implement” appearing in
Section 54 ought to be interpreted purposively looking at the purpose of
the said section along with the other provisions of the Adhiniyam.
B 4.7 It is further contended with regard to Section 54 on non-
implementation of the scheme as under: -
(a) That Section 54 must be understood as the time-cap for the
restriction provided in section 53. It is submitted that, section 53
places a restriction on land owners whose lands have been notified
C to be part of a Town Development scheme to carry out
development of this land. That such restriction cannot be for an
unlimited duration and hence section 54 gives the maximum period
of three years up to which such restrictions can continue.
(b) While the restrictions under section 53 are in place, substantial
D steps are required to be taken for “acquisition” of land either by
agreement or under the Land Acquisition Act, 1894.
(c) The manner of acquisition has been provided under Section
56 of the Act and Rule 19 of the then existing M.P. Nagar Tatha
Gram Nivesh Niyam, 1975, prescribes the steps to be taken in the
E process of acquisition. Section 56 provides two modes of
acquisition: -
(i) Proceed to acquire by agreement, and
(ii) On failure to acquire by agreement, proceed to acquire under
the Land Acquisition Act.
F
Rule 19 of the 1975 Rules, read with section 56, provide as under:-
“19. Acquisition of land - (1) For the purpose of land acquisition
under section 56 of the Act, the land shall be in the Town and
Country Development Authority subject to the following terms
G and conditions namely:-
(i) Within three years from the date of publication of
the Town Development Scheme under Section 50,
the town and country development authority shall
proceed to acquire the land required for the
H implementation of the scheme.
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 101
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
(ii) Where such acquisition is by agreement, the land A
shall vest in the Town and Country Development
Authority on terms and conditions arrived at through
such agreement.
(iii) On failure of agreement the Town and Country
Development Authority shall request the state B
government to acquire such land under the provisions
of the Land Acquisition Act, 1894 (1 of 1894) on
payment of compensation awarded under that Act.
(iv) Declaration shall be published under section 6 of the
Land Acquisition Act, 1894 (1 of 1894) C
(v) After such declaration the collector shall proceed to
take order for the acquisition of the land under the
said Act, and the provisions of the Act shall apply so
far as may be, apply to the acquisition of the said
land with the modification that the market value of D
the said land shall be the determining factor.”
Rule19(1)(i) contains a general statement enabling the authority
to “proceed to acquire” the land required for implementation of the
scheme. This, can be done in two ways - (1) acquisition by agreement
under 19(1)(ii), and on failure to acquire by agreement, (2) by compulsory E
acquisition the steps necessary for which are provided under 19(1)(iii)(iv)
and (v). Thus, for compulsory acquisition there should be :-
(1) A request by the Town and Country Development Authority
for compulsory acquisition,
(2) A declaration under section 6 of the Land Acquisition Act, and F
(3) A request by the Collector to the appropriate government for
an order for acquisition of land under section 7 of the Land
Acquisition Act, 1894.
4.7 It is submitted that thus, while the restrictions under section
53 are in place, the Authority is expected to “implement” the scheme. G
During the period, the authority must act in a manner and reach the
stage where the position becomes “irreversible” or substantially
irreversible” so far as the land owner is concerned, i.e.,
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102 SUPREME COURT REPORTS [2023] 2 S.C.R.
A (i) The land of the land owner is either “acquired” by
agreement, in which case he would get the agreed
compensation for his land; or
(ii) Substantial steps are taken for compulsory acquisition of
the land under the Land Acquisition Act, 1894 such that the
B position reaches the stage of the order under section 7 of
the said Act; or
(iii) Passing of an award under section 11 or takeover of
possession under section 16 resulting in complete vesting is
however not the requirement of “implementation” for the
C purposes of section 54 read in conjunction with section 56
read and rule 19.
4.8 It is further submitted that as per Section 55, the land for a
town development scheme would be land needed for public purpose
under the Land Acquisition Act. That once a declaration under section 6
D is issued under section 6(3) of the LA Act, the declaration becomes
conclusive evidence that the land is needed for public purpose. It is
submitted that the statutory fiction under section 55 also continues for a
period of three years, for, if the scheme lapsed under section 54, the
statutory fiction under section 55 also comes to an end. That therefore,
before the period lapses, a declaration under section 6(3) takes over and
E necessity of a statutory fiction under section 55 thereafter is no longer
necessary.
4.9 It is averred that in a case where a notification under section
4 is issued after expiry of 3 years from the date of final scheme under
section 50(7), the statutory fiction under section 55 would come to an
F end and acquisition for a lapsed scheme would not be for a public purpose.
It is submitted that acquisition of land for a “public purpose” is a sine-
qua-non, absent which no acquisition would be valid.
4.10 It is next submitted that taking steps for acquisition by
agreement cannot be said to amount to “taking steps” to implement the
G scheme within a period of three years. That as rightly observed by the
learned Single Judge, even assuming that IDA was making efforts to
acquire the lands through private negotiations with the land owners, this
effort of the IDA would not create any bar against getting the scheme
implemented under the Adhiniyam. That as rightly observed by the
learned Single Judge, both the steps could have been taken by the IDA
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 103
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
simultaneously. Therefore, the learned Single Judge as well as the Division A
Bench of the High Court have rightly held that the scheme in question
had lapsed in view of Section 54 of the Adhiniyam as the scheme was
not implemented within a period of three years.
4.11 As regards the competence of the Collector to act as
“appropriate government” for the purposes of section 5A and 6 of the B
LA Act, 1894, it is submitted that in the present case after the issuance
of the notification under section 4, objections under section 5A were
invited which were collated by the Deputy Collector and Land Acquisition
Officer who filed his report before the Collector. The collector proceeded
to decide the objections under section 5A of the Act. That thereafter, the
collector proceeded to issue a declaration under section 6 of the Act. It C
is submitted that in the present case, the Hon’ble Minister did not delegate
his powers under section 5A of the Land Acquisition Act, 1894 to the
Collector, who was empowered to act under sections 4, 5, 6 and 17 of
the Act.
4.12 It is contended that the power to take a decision under section D
5A is the power of the “appropriate government”, which in view of
section 3(ee) would mean the State Government in the facts of the present
case. That in the present case, the powers of the “appropriate
government” under section 5A have not been delegated to any authority
by the order dated 22.03.1985. E
4.13 It is next submitted that powers under section 6 have to be
exercised “under the signature of a Secretary to such government or of
some officer duly authorized to certify its orders”. That the said powers
have been conferred by the Government order dated 22.03.1985 upon
the “Divisional Commissioner.” The declarations under section 6 have F
been issued by and under the signatures of the Collector as Deputy
Secretary. Therefore, the High Court is fully justified in its conclusion
that the Collector, who had exercised powers of the State Government
under section 5A, did not have the said powers.
4.14 It is further submitted that even otherwise, as rightly observed G
and held by the High Court, there was a hostile discrimination on the
part of the State Government and the IDA. That in the present case, out
of 531.428 hectares of land identified and included for schemes at the
time of final notification of the scheme under section 50(7), 261.796
hectares of land has already been released by the IDA/State of Madhya
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104 SUPREME COURT REPORTS [2023] 2 S.C.R.
A Pradesh. That once the large portions of the land have been released,
the schemes as originally envisaged cannot be implemented. Since the
scheme and the acquisition notification have been quashed, the
respondents did not avail of the remedy of increase in compensation by
filing a reference under section 18 of the Act. That in case, this Court
upholds the scheme and the acquisition, the respondents may be given
B
liberty to file reference, if so advised, for increase in compensation
determined by the LAO.
4.15 It is further submitted that even otherwise the appeals filed
by the IDA have since been rendered in fructuous in view of the
amendment in Section 50 of the Adhiniyam by 2019 Amendment Act.
C That as per amended section 50(1)(b) of the Act, where a town
development scheme has been notified under the repealed provisions of
the Act, but development has either not started or not been taken up for
any reason, the same shall lapse. It is submitted that in the present case,
insofar as others schemes are concerned, the same have been declared
D to have lapsed in view of amended section 50(i)(b). It is submitted that
since the scheme in question was quashed by the High Court in year
1988 which order was confirmed by the Division Bench in the year
2014, the scheme could not be acted upon. That in the present case,
neither the possession of the lands has been taken by the authority (as
there was stay orders by the High Court) nor compensation for the
E schemes has been deposited. It is submitted that admittedly out of 531.428
hectares, 261.796 hectares of land out of approved scheme layout has
been released and no land has been acquired through mutual negotiations
with the land owners. Therefore, in the facts and circumstances of the
case, learned Single Judge as well as the Division Bench of the High
F Court have rightly quashed the scheme, treated it as having been lapsed
under Section 54 of the Adhiniyam and have rightly quashed the acquisition
proceedings under the LA Act.
4.16 Other learned senior counsel/counsel appearing on behalf of
the original writ petitioners have virtually made the same submissions as
G made by Shri Punit Jain and therefore, the same are not repeated. All
the learned counsel appearing for the original writ petitioners have
supported the impugned judgment and order passed by the High Court
on the lapse of the scheme as well as quashing and setting aside the
acquisition proceedings.
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 105
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
5. We have heard learned counsel for the respective parties at A
length.
By the impugned common judgment and order, the High Court
has quashed Scheme No. 97 framed by the appellant – Indore
Development Authority framed in exercise of the powers conferred under
Section 50 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, B
1973, as well as the entire acquisition proceedings under the Land
Acquisition Act, 1894 with respect to the lands covered under Scheme
No. 97. From the judgment and order passed by the learned Single Judge,
confirmed by the Division Bench, it appears that the High Court has set
aside the scheme as well as the acquisition proceedings, inter alia, on
the following grounds: C
(i) That the scheme has lapsed in view of section 54 of the
M.P. Nagar Tatha Gram Nivesh Adhiniyam;
(ii) That a substantial portion of the lands forming part of the
two schemes 97(2) and 97(4) had been released and D
continuing the scheme thereafter and selectively acquiring
the lands of the other landonwers (i.e., the respondents
herein) is an act of hostile discrimination being in violation
of Article 14; and
(iii) There was no delegation of the power of the State E
Government under Section 5-A to the Commissioner and
hence, the decision for acquisition of the land under Section
5A is not by a proper authority. Acquisition is thus vitiated.
6. As regards the finding recorded by the High Court that Scheme
No. 97 has lapsed in view of section 54 of the Adhiniyam and in order to F
consider whether the High Court is justified in quashing the entire scheme
on the ground that the same has lapsed under section 54 of the Adhiniyam,
the relevant provisions of the Adhiniyam are required to be referred to,
which are as under:
“50. Preparation of Town Development Schemes. - (1) The Town
G
and Country Development Authority may, at any time, declare its
intention to prepare a town development scheme.
(2) Not later than thirty days from the date of such declaration of
intention to make a scheme, the Town and Country Development
H
106 SUPREME COURT REPORTS [2023] 2 S.C.R.
A Authority shall publish the declaration in the Gazette and in such
other manner as may be prescribed.
(3) Not later than two years from the date of publication of the
declaration under sub-section (2) the Town and Country
Development Authority shall prepare a town development scheme
B in draft form and publish it in such form and manner as may be
prescribed together with a notice inviting objections and suggestions
from any person with respect to the said draft development scheme
before such date as may be specified therein, such date being not
earlier than thirty days from the date of publication of such notice.
C (4) The Town and Country Development Authority shall consider
all the objections and suggestions as may be received within the
period specified in the notice under sub-section (3) and shall, after
giving a reasonable opportunity to such persons affected thereby
as are desirous of being heard, or after considering the report of
the committee constituted under sub-section (5) approve the draft
D scheme as published or make such modifications therein as it may
deed fit.
(5) Where the town development scheme relates to reconstitution
of plots, the Town and Country Development Authority shall,
notwithstanding anything contained in sub-section (4), constitute
E a committee consisting of the Chief Executive Officer of the said
authority and two other members of whom one shall be
representative of the Madhya Pradesh Housing Board and the
other shall be an officer of the Public Works Department not
below the rank of an Executive Engineer nominated by the Chief
Engineer, Public Works Department for the purpose of hearing
F objections and suggestions received under sub-section (3).
(6) The committee constituted under sub-section (5) shall consider
the objections and suggestions and give hearing to such persons
as are desirous of being heard and shall submit its report to the
Town and Country Development Authority within such time as it
G may fix along with proposals to,-
(i) define and demarcate the areas allotted to or reserved for
public purpose;
(ii) demarcate the reconstituted plots;
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 107
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
(iii) evaluate the value of the original and the reconstituted A
plots;
(iv) determine whether the areas reserved for public purpose
are wholly or partially beneficial to the residents within the
area of the scheme;
(v) estimate and apportion the compensation to or contribution B
from the beneficiaries of the scheme on account of the
reconstitution of the plot and reservation of portions for public
purpose;
(vi) evaluate the increment in value of each reconstituted plot
and assess the development contribution leviable on the plot C
holder :
Provided that the contribution shall not exceed half the accrued
increment in value;
(vii) evaluate the reduction in value of any reconstituted plot
and assess the compensation payable therefor. D
(7) Immediately after the town development scheme is approved
under sub-section (4) with or without modifications the Town and
Country Development Authority shall publish in the Gazette and
in such other manner as may be prescribed a final town
development scheme and specify the date on which it shall come E
into operation.
xxx xxx xxx
54. Lapse of scheme - If the Town and Country Development
Authority fails to commence implementation of the town
development scheme within a period of two years or complete its F
implementation within a period of five years from the date of
notification of the final scheme under Section 50, it shall, on
expiration of the said period of two years or five years, as the
case may be, lapse :
Provided that, if a dispute between the authority and parties, if G
any, aggrieved by such scheme, is brought before a Court or
Tribunal of competent jurisdiction, for consideration, the period
for which such dispute pending before such Court or Tribunal
shall not be reckoned for determination of the lapse of the scheme.]
xxx xxx xxx
H
108 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 56. Acquisition of land for Town and Country Development
Authority. - The Town and Country Development Authority may
at any time after the date of publication of the final town
development scheme under Section 50 but not later than three
years therefrom, proceed to acquire by agreement the land
required for the implementation of the scheme and, on its failure
B
so to acquire, the State Government may, at the request of the
Town and Country Development Authority, proceed to acquire
such land under the provisions of the Land Acquisition Act, 1894
(No. 1 of 1894) and on the payment of compensation awarded
under that Act and any other charges incurred by the State
C Government in connection with the acquisition, the land shall vest
in the Town and Country Development Authority subject to such
terms and conditions as may be prescribed.”
Thus, as per Section 54 of the Adhiniyam, if the Town and Country
Development Authority fails to commence implementation of the Town
D Development Scheme within the period stipulated in section 54 of the
Adhiniyam, the Scheme shall lapse. Therefore, the words “commence
implementation” are vital and important words which are required to be
considered and interpreted.
7. It is the case on behalf of the Development Authority that the
E following steps were taken for implementation of Scheme No. 97 within
three years, i.e., 8.6.1984, which are as under:
F
G
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 109
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
At this stage, it is required to be noted that as per section 56 of the A
Adhiniyam, the Development Authority may at any time after the date
of publication of the final town development scheme under section 50,
but not later than three years therefrom, proceed to acquire by agreement
the land required for the implementation of the scheme and, on its failure
so to acquire, the State Government may, at the request of the
B
Development Authority, proceed to acquire such land under the provisions
of the Act, 1894. Thus, under section 56 of the Adhiniyam, within three
years the Development Authority was required to proceed to acquire by
agreement the land required for the implementation of the scheme and
only thereafter and on its failure so to acquire, the State Government
may, at the request of the Development Authority, proceed to acquire C
such land.
8. It is the case on behalf of the Development Authority that in
the present case since negotiations failed and the Development Authority
failed to acquire the land by agreement, the Development Authority
requested the State Government on 4.06.1987 to acquire the land, which D
request was made within a period of three years from the date of
finalization of the scheme. Therefore, it is the case on behalf of the
Development Authority that the scheme shall not have lapsed under
section 54 of the Adhiniyam. It is the case on behalf of the Development
Authority that taking various steps between 8.06.1984 and 4.06.1987
can be said to be in furtherance of, or commencing implementation of E
the scheme.
However, on the other hand and as per the High Court, actual
implementation of the scheme is a must and that there were no substantial
steps to implement the scheme within three years. That to make the
request four days before the completion of three years would not be F
sufficient and therefore the scheme has lapsed under section 54 of the
Adhiniyam. As observed hereinabove, the words used in Section 54 of
the Adhiniyam are “fails to commence implementation”. That does not
mean that there must be implementation of the scheme within the time
stipulated under section 54 of the Adhiniyam. There is a clear distinction G
between the words “implementation” of the scheme and “to commence
implementation”.
9. An identical question came to be considered by the Madhya
Pradesh High Court in the case of Sanjai Gandhi Grah Nirman Sahkari
Sanstha Maryadit v. State of M.P. and others, reported in 1990 SCC H
110 SUPREME COURT REPORTS [2023] 2 S.C.R.
A OnLine MP 115 : AIR 1991 MP 72. While interpreting the words
“implementation of the scheme” and the word “implementation” occurring
in section 54 of the Adhiniyam, it was observed and held that the word
“implementation” occurring in section 54 of the Adhiniyam cannot be
construed to mean that even after substantial steps have been taken by
the authority towards the implementation of the scheme, the scheme
B
shall lapse after the expiry of three years because of its non-completion
within that period. While observing and holding so, in paragraphs 16 to
20, it was observed as under:
“16. It has next been contended by learned counsel for the
petitioners that in accordance with the provisions contained in S.
C 54 of the Adhiniyam the scheme has lapsed because the Indore
Development Authority has failed to implement the scheme within
a period of three years from the date of the publication of the
scheme under S. 50 of the Adhiniyam. The learned counsel for all
the petitioners have laid much emphasis on the fact that the word
D ‘implementation’ would clearly mean fulfilment, performance,
accomplish, complete, carry out and as such from the dictionary
meanings in the Webster Dictionary, Chambers Dictionary, Oxford
Dictionary or any other dictionary, there can only be one meaning
to the word ‘implementation’ that the scheme has to be completed
or carried out in all respects within the prescribed period of three
E years and if the Indore Development Authority fails to implement
the scheme within that period the scheme shall lapse in view of
the statutory provision of S. 54.
17. On the other hand it has been argued that the word
‘implementation’ has to be construed in the context of the
F Adhiniyam itself. The whole scheme of the Adhiniyam in respect
of formulation of the scheme and the implementation of the scheme
has to be taken into consideration before holding that the
implementation would only mean the completion.
18. For properly appreciating the respective arguments of the
G parties let us read the different provisions contained in the
Adhiniyam in respect of the preparation and implementation of
the scheme. Section 50 provides for the preparation, of a town
development scheme and different stages have been provided for
the preparation of the scheme and sub-section (7) of S. 50 of the
H Adhiniyam provides that as soon as the town development scheme
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 111
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
is approved under sub-section (4) with or without modifications A
the Town and Country Development Authority shall publish in the
gazette and in such other manner as may be prescribed a final
town development scheme and specify the date on which it shall
come into operation. After the final publication of the scheme a
power of revision has been provided in S. 51, wherein the Director
B
of Town and Country Planning has been given a power, on an
application filed by any of the aggrieved person or suo motu, to
examine the record of the scheme and pass any such order
modifying the scheme as he may deem fit after perusing the record
and during that time he may suspend the execution of the scheme.
This power of the Director can be exercised by him within two C
years from the date of the publication of the final, scheme. Then
again under S. 52 of the Adhiniyam the State Government has a
power to give directions in respect of modification of a scheme,
revoking the scheme or for framing a fresh scheme. Then S. 54
of the Adhiniyam provides for the lapse of a scheme if it is not
D
implemented within a period of three years.
Section 56 of the Adhiniyam provides that after the date of
publication of the final scheme under S. 50 the Authority may
proceed to acquire the land required for the implementation of the
scheme within a period of three years by agreement and if there
is a failure in acquiring the land by agreement then request for the E
acquisition of the land may be made to the authority. Then S. 57
provides for the development which clearly says that when the
land has vested in the Authority under S. 56 of the Act in
accordance with the provisions of the Town Development Scheme,
the authority shall take necessary steps to develop the land. F
Thereafter also the State Government or the Director has a
supervisory power to ensure that the development is in accordance
with the scheme and may also issue directions to the authority
which are binding on the authority. As such the aforesaid provisions
made in the Adhiniyam have to be taken into consideration before
interpreting the word ‘implementation.’ G
After a scheme is published under S. 50(7) of the Adhiniyam, the
Director has an authority to revise the final scheme within a period
of two years and then under S. 56 of the Adhiniyam the Authority
has been given power to initiate negotiations for acquisition a within
H
112 SUPREME COURT REPORTS [2023] 2 S.C.R.
A a period of 3 years, failing which the land acquisition proceedings
may be initiated and S. 57 postulates the commencement of the
development work after the land is acquired and is vested in the
authority. As such the word ‘implementation’ can never be
construed to mean that the scheme should be fulfilled or carried
out within a period of three years. Reading S. 54 of the Adhiniyam
B
along with Ss. 56 and 57 of the Adhiniyam the irresistable
conclusion is that the intention of the legislature was that if a
scheme is lying idle after its final publication for a period of 3
years, then it will lapse. But if steps have been taken by the
authorities towards the implementation of the scheme then, the
C word ‘implementation’ shall not be construed to mean that the
period of three years is the period prescribed for the completion
of the scheme.
19. In the instant case the scheme is for the preparation of a ring
road and developing different facilities and civic conveniences
D around the ring road. A scheme for a much larger construction
and development may be prepared which may even take ten years
to complete. If we interpret the word ‘implementation’ in its narrow
sense, a big scheme can never be taken in hand by any development
authority because it may not be possible to complete that scheme
within 3 years. Therefore, that only reasonable interpretation in
E view of the different provisions of the Adhiniyam, can be that if
the development authority takes steps towards the implementation
of the scheme and does not sit just idle for a period of three years,
then the scheme shall not lapse, but if after the publication of the
scheme nothing is done on the part of the authority, towards the
F implementation of the scheme then that scheme shall lapse.
20. A Division Bench of this Court in the case
of Laxmichand v. The Indore Development Authority,
Indore (M.P. No. 390 of 1980 decided on 14-12-81) in which a
similar argument was advanced that after the expiry of three years
G if the scheme is not implemented it lapsed, has held that S. 54
does not appear to apply when substanital steps have been taken
within three years to implement the scheme. The Court had also
taken into consideration Ss. 56, 57 and 58 of the Adhiniyam and
has taken a view that the words ‘fails to implement’ would mean
failure to take any substantial steps for the implementation of the
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 113
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
scheme and if no such step is taken within three years the scheme A
will lapse. If substantial steps have been taken within three years
though the scheme is not fully implemented within that period the
scheme would not lapse and proceedings for acquisition of land
under the scheme is a substantial step towards its implementation.
We are in respectful agreement with the aforesaid view taken by
B
a Division Bench of this Court and hold that the word ‘implement’
occurring in S. 54 of the Adhiniyam cannot be construed to mean
that even if a substantial step has been taken by the authority
towards the implementation of the scheme then also the scheme
shall lapse after the expiry of three years because of its non-
completion within that period.” C
We are in complete agreement with the view taken by the Madhya
Pradesh in the aforesaid case.
10. At this stage, Rule 19 of the M.P. Nagar Tatha Gran Nivesh
Niyam, 1975 r/w Section 56 of the Adhiniyam are required to be referred
to. As per section 56 of the Adhiniyam r/w Rule 19 and for the purposes D
of land acquisition under section 56 of the Adhiniyam, within three years
from the date of publication of the final town development scheme under
section 50, the Town and Country Development Authority shall proceed
to acquire the land required for the implementation of the scheme. The
words used are “ proceed to acquire” and not “actual acquisition”. The E
intention of the legislature thus seems to be very clear and unambiguous.
Therefore, when the Statute provides certain things to be done within
the stipulated time mentioned in the Act, the Authority is to be given
such time, more particularly while dealing with the scheme which has
been framed for the entire area and for the public purpose. In the present
case, Scheme No. 97 has been framed and the lands have been acquired F
for residential, park and industrial purposes. Any other meaning may
frustrate the purpose of framing of the scheme for residential, part and
industrial purposes.
11. In view of the above and when within three years various
steps were taken for implementation of the scheme including the steps G
to acquire the land by negotiations and even thereafter on failure to
acquire the land by negotiations approaching the State Government to
acquire the land under the Land Acquisition Act, the High Court has
erred in declaring that the scheme has lapsed under section 54 of the
H
114 SUPREME COURT REPORTS [2023] 2 S.C.R.
A Adhiniyam. The High Court has adopted too narrow a meaning while
interpreting and/or considering section 54 of the Adhiniyam.
12. So far as quashing and setting aside the entire acquisition
proceedings including sections 4 & 6 notifications issued under the
provisions of the Land Acquisition Act with respect to the lands in question
B on the ground that there was no proper delegation of power to the Collector
with regard to Section 5A of the Act, is concerned, it is required to be
noted that in the present case, the State Government vide its letter dated
22.3.1985 delegated its power to the District Collector as Deputy
Secretary of the Revenue Department and to the Commissioner of the
division to act as Secretary of the Revenue Department and to adjudicate
C matters related to land acquisition by exercising powers given under
Sections 4, 5, 6 and 17 of the Act, 1894. Merely because Section 5A has
not been mentioned in the said order, the entire acquisition proceedings
including notifications under Sections 4 & 6 of the Act, 1894 and more
particularly the declaration which was issued after considering the report/
D objections under section 5A cannot be declared illegal.
12.1 Further, a declaration under Section 6 of the Act, 1894 could
be issued only after the report submitted under Section 5A has been
considered by the appropriate government. Under Section 5A of the
Act, the objections are required to be considered by the Collector, i.e.,
E the Collector of a District including a Deputy Commissioner and any
other officer especially appointed by the appropriate government to
perform the functions of a Collector under the Land Acquisition Act. In
the present case, apart from being specially appointed by the appropriate
government to perform the functions of a Collector, the authority who
has considered the objections under Section 5A is the Collector of a
F District. Even the State Government vide its circular dated 6.03.1987
conferred power on the Deputy Collectors for exercising the functions
of the Collector for acquisition of the land in their respective areas.
12.2 An identical question came to be considered by the Madhya
Pradesh High Court in the case of Adarsh Nagar Grih Nirman Sahkari
G Sansthan Maryadit, Bhopal v. State of M.P. and Others, reported in
2004 (1) M.P.L.J. 539 : 2003 SCC OnLine MP 329, in paragraphs 24
to 26, it was observed and held as under:
“24. The submission raised by the learned counsel that this
notification (R-6) is bad in law and based on the provisions of
H
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 115
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
sections 4, 5-A and 6 of the Act cannot be accepted. Division A
Bench of this Court in case of Gajancm v. State of M.P., AIR
2000 MP 2, repelled similar submission that such satisfaction was
arrived at by Collector/Commissioner, not by State Government
the acquisition cannot be challenged on the ground of satisfaction
was not arrived at by ‘appropriate government’. The business of
B
the Government is required to be transacted in the name of
Governor, it is not possible or practicable that all such business
was dealt with by him or by Council of Ministers.
In Gajanan (supra), it has been held:—
“33. In State of M.P., Governor had made Rules of Business
and Rules of allocation of Business and had also issued C
instructions thereunder. Under Rule 4 of BAR he had put
Revenue Department under the charge of a Minister. He had
further allotted business of land acquisition to the Revenue
Department. The Revenue Minister was authorised to delegate
the power for disposal of any item of business to the Secretary D
of the Department under Rule 2-A of the Supplementary
Instructions issued Rule 13 of Business Rules. Similarly, the
government had declared in terms of Entry 49 of Business
Allocation Rules that General Administrative Department would
be entitled to designate ex-officio of ficers and in exercise
whereof it had notified the Revenue Commissioners and E
Collectors as ex-officio Secretaries/Deputy Secretaries to take
decisions in land acquisition matters on behalf of the
Government. All this showed that power to deal with land
acquisition subject flowed down to Secretary/Deputy Secretary
of the Revenue Department or any other of ficial who was F
declared/appointed/designated so ex-officio for the purpose and
once such appointed ex-officio Secretary (Revenue
Commissioner) was asked to dispose of land acquisition matters
by the Minister-in-charge under Rule 2-A of supplementary
instructions, he assumed the jurisdiction to deal with such
matters and all his actions and decisions become that of the G
Government.”
25. The question of delegation of such power has been answered
in Gajanan (supra) as under:
H
116 SUPREME COURT REPORTS [2023] 2 S.C.R.
A “33A. Mr. Asudani’s reliance on AIR 1957 Mad 48 to suggest
that Minister’s order to empower ex-officio Secretary (Revenue
Commissioner) was invalid as it was not a Government order
and that such power could not be delegated by him is wholly
misconceived. It is true that a Minister’s instruction or direction
does not partake the character of a Government order unless
B
formalised in conformity with the Rules of Business but in the
present case no such Government order was required to be
passed to vest the requisite power in the Revenue
Commissioner. It is also fallacious to contend that the Minister
could not delegate such power because Governor alone could
C do that. Once Governor himself had empowered the Minister
to ask the Secretary to deal with and dispose of any item of
business under the rules, it tantamounted to delegation of power
by the Governor himself. We are also not impressed by the
submission that such power could be delegated only to “a
Secretary” perhaps implying Secretary of the Department. This
D
overlooks a situation where a department may have more than
one Secretary and the Minister could delegate the power to
any of them.”
26. In the instant case Collector has exercised the power of
appropriate Government and Deputy Collector has forwarded the
E objections and submitted the report to the Collector and Collector
has exercised the power under section 6, I find no impropriety in
the same.”
12.3 In the instant case also, when the Collector has exercised
the power of the appropriate government and a declaration under section
F 6 of the Act has been issued after considering the report on the objections
under Section 5A of the Act, the High Court has seriously erred in quashing
and setting aside the entire acquisition proceedings on the aforesaid
ground.
13. So far as the third ground on which the scheme and the entire
G acquisition proceedings have been set aside, namely, the huge and big
chunk of land out of the total land sought to be acquired by the
Development Authority which has been released, is concerned, it is
required to be noted that out of the total land acquired, 68.11% of the
land has been developed and 31.89% has not been developed due to
H interim orders passed by the Courts. Even otherwise, it is required to be
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN 117
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
noted that out of the total land covered under the scheme, i.e., 332.616 A
hectares (277.853 hectares of land acquired through award plus 44.763
hectares of the land owned by the Authority), land has been released for
various purposes to the extent of 54.660 hectares and still the remaining
land would be to the extent of 267.956 hectares out of which the land
involved in the present appeals would be to the extent of 85.430 hectares.
B
According to the Development Authority, 111.156 hectares of the land
covered under the scheme was released in favour of Housing Cooperative
Societies because the object of the housing societies and the scheme
was the same. According to the Development Authority, the Authority/
State Government had released the land only of those societies who had
either developed or started development of colonies or had acquired the C
title to the land or had obtained exemption under section 20 of the Urban
Land (Ceiling & Regulation) Act, 1976 before publication of the final
scheme under section 50(7) of the Adhiniyam. According to the
Development Authority, 104.524 hectares of land covered under the
scheme which was released from the scheme, the land use of the said
D
land was either agricultural or regional park. Release of the land having
area of 46.116 hectares of land was in response to objections under
section 5A of the Act because of certain reasons like existing houses,
religious places, different land use etc.
13.1 Thus, from the above, it cannot be said that the release of
the land was arbitrary and/or with an object of undue favour to those E
persons whose lands have been released. As rightly submitted that even
otherwise such lands were to be acquired for residential, park and
industrial purposes, release of the land which according to the authority
was for valid reasons or valid grounds has not prejudiced or affected the
integrity of the scheme. The end result of the release of some land is F
that the total area of the scheme is lesser to that extent but the integrity
of the scheme remains the same. At this stage, it is required to be noted
that some of the lands have already been used by the authority for the
purpose of a park which is used for the benefit of local people. Under
the circumstances, the third ground on which the scheme and the entire
acquisition proceedings have been quashed by the High Court does not G
stand on its legs and the said finding is unsustainable.
14. In view of the above and for the reasons stated above, the
present appeals are allowed and the impugned common judgment and
order passed by the High Court dismissing the writ appeals and the
H
118 SUPREME COURT REPORTS [2023] 2 S.C.R.
A common judgment and order passed by the learned Single Judge declaring
Scheme No. 97 as having lapsed under section 54 of the Adhiniyam and
quashing and setting aside the entire acquisition proceedings with respect
to the lands in question, are unsustainable and the same deserve to be
quashed and set aside and accordingly are hereby quashed and set aside.
However, in the facts and circumstances of the case, there shall be no
B
order as to costs.
Ankit Gyan Appeals allowed.
(Assisted by : Aarsh Choudhary, LCRA)
C
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