Judgment:
A.G. Qureshi, J.
1. This order shall govern the disposal of Misc. Petitions Nos. 389/87, 489/87, 944/87, 76/88, 997/88, 1213/88, 1227/88, 1317/88, 141/89, 197/89, 222/89, 277/89, 561/89, 562/89, 600/89, 603/89, 610/89, 611/89, 612/89, 639/89, 645/89, 711/89, 788/89, 799/89, 974/89, 1188/89, 1189/89, 1190/89, 1282/89,91/90, 781/90 and 783/90, challenging he development scheme prepared by the Indore Development Authority known as Scheme No. 94 of the Indore Development Authority for Eastern Ring Road, and the land acquisition proceedings initiated by the Collector and Ex Officio Deputy Secretary to the Government of Madhya Pradesh, Indore, for the implementation of that scheme.
2. Scheme No. 94 of the Indore Development Authority has been prepared mainly for the construction of Eastern Ring Road around the city of Indore wherein provisions have also been kept for Regional Park, Commercial, Health, Bus Terminal, Industrial, Educational and Residential Buildings. Section 49 of the M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as the 'Adhiniyam') provides for the preperation of a town development scheme wherein provisions can be made for any of the matters enumerated therein. Then Section 49(vi) makes provision for a particular development scheme for purpose of acquisition of land and its development for laying out or remodelling of road and street patterns. The development plan known as master plan comes into force on 21-3-75 for the City of Indore. In the said master plan a provision along with other things was made for a ring road around the city of Indore. Therefore, the Indore Development Authority for implementation of that part of the master plan prepared scheme No. 94. The scheme was prepared in pursuance to a resolution dated 30-1-1981 and the scheme after the necessary sanction of alignment by the Joint Director of Town & Country Planning was prepared and declaration was published in accordance with Section 50(2) of the Adhiniyam.
3. Sub-section (2) of Section50 provides that not later than 30 days from the date of such declaration of notification to make a scheme, the Town and Country Development Authority shall publish the declaration in the gazette and in such manner as may be prescribed. Accordingly, the notification was sent for publication in the gazette, vide letter dated 23-2-81 to the Deputy Controller of the Govt. Press, Gwalior to publish notification No. 91 dated 23-2-81 in the official gazette. The said notification was also sent for publication to the press and accordingly the declaration was published in Nai-Duniya (dainik) and Dainik Indore Samachar, the Hindi newspapers which are published from Indore. The notification was accordingly published in the two Hindi newspapers on 26-2-1981. Thereafter the Indore Development Authority started the process for preparation of the scheme in the draft from as required by Sub-section (3) of Section 50. Thereafter by resolution No. 4 dated 19-1-83, the I.D.A. resolved that the draft scheme be published in accordance with Section 50(3) of the Adhiniyam and objections be called in accordance with the provisions of law. The proposed draft scheme was published in Nai Duniya dated 27-3-83 and in the gazette dated 25-3-83.
4. As a result of the publication of the draft scheme 238 objections were received and after considering the objections the draft schemes prepared was approved by the resolution of the Authority dated 10-2-1984. In the same resolution a decision was taken to publish the final town development scheme as required by Section 50(7) of the Adhiniyam. Accordingly the final development scheme was published in Nai Dimiya dated 10-8-84 and in the M. P. Gazette dated 24-8-84. The scheme was divided into sectors from sector-A to sector-H denoting the land under the scheme falling in different villages.
5. Thereafter, as required by Section 56 of the Adhiniyam the Collector was requested to acquire the land in accordance with the phase-wise programme and accordingly by letter dated 19-12-84, 2-1-86, 13-1-87 and 4-3-87 the Collector was requested to acquire the land for the Authority under the provisions of the Land Acquisition Act. The Collector Indore designated as Dy. Secretary in the Revenue Department. State of M.P. for the purpose of acquisition of land, issued notification on different date for the acquisition of the lands falling under the scheme under Section 4 of the Land Acquisition Act. Thereafter notice under Section 6 of the Land Acquisition Act was also published in the M. P. Gazette in respect of the lands to be acquired. A notification under Section 17(1) of the Land Acquisition Act was also published in the M. P. Gazette dispensing with enquiry under Section 5A of the Act.
6. The aforesaid scheme and the notification issued by the Collector Indore have been challenged by the different petitions which are being disposed of by this common order in view of the fact that the points of law involved in all these petitions are identical.
7. The petitioners in the aforesaid petitions have raised multi-progned pleas to challenge the scheme and the Land Acquisition proceedings. The arguments advanced by the learned counsel for the petitioners may be summarised as under:
(1) The scheme has been prepared without preparation of Zonal Plan under the Adhiniyam and, therefore, the petitioners could not know exactly as to what portion of the land would fall in the scheme because the Zonal Plan enlarges the development plan and it is only after the preparation of the Zonal Plan that a person can know that what area has been reserved for what purpose in the Development Plan (Master Plan).
(2) The Ring Road proposed by the Authority is not in accordance with the Master Plan, and therefore, is illegal.
(3) The scheme prepared does not remain in force after a lapse of three years in view of the provisions contained in Section 54 of the Country and Town Planning Act. The scheme has, therefore, lapsed after three years of the publication of the scheme as it is not implemented within that period.
(4) No attempt has been made to acquire the land through negotiations that is why acquisition proceedings are in violation of the provisions contained in Section 56 of the Adhiniyam.
(5) The I.D.A. has not followed to procedure contained in Section 50(5) and 50(6). Therefore, the scheme is null and void.
(6) The publication in the Gazette and the newspapers is also not in accordance with the Rules.
(7) Some of the lands notified under scheme No. 94 are also included in other schemes.
8. The acquisition proceedings have been challenged on the ground that notification under Section 6 of the Land Acquisition Act is after expiry of one year of the notification published under Section 4. For the ring road, only a land of the width of 75 metres is required and for further expansion a provision has been kept for keeping the width of the road at 250 ft. but the lands which are not required for the ring road are also being acquired which is illegal. That persons similarly situated as some of the petitioners have been given the benefit of leaving their land which is in the ring road whereas the lands of the petitioners acquired is much more than what is required for the ring road. As such the policy of the I.D.A. is discriminatory.
9. Some Co-operative Housing Societies have raised this plea that the exemption has been granted by the Government under Section 20 of the Land Ceiling Act after seeking no objection from the I.D.A. and the land is also included in Scheme No. 77. So it is not definite as to whether the land is being acquired for the purpose of scheme No. 77 or scheme No. 94. The scheme as published contains only particulars of the ring road whereas the acquisition is being made for other purposes also than the ring road. The notifications issued under the Land Acquisition Act are also contrary to law and the publication of the scheme is also in contravention of the Rules framed under the Town and Country Planning Act. According to Section 49 of the Adhiniyam agricultural land cannot be included in the scheme. There is no publication of the notification under Section 4(1) of the Land Acquisition Act in that locality where the lands are situated. The delegation of powers to the Collector under Section 5A of the Land Acquisition Act has also been challenged. There is a violation of the provisions contained in Section 50(3), (4), (5) and (6) of the Adhiniyam. Although the scheme is one but notifications for different areas have been issued on different dates.
10. According to the I.D.A. the scheme cannot be challenged after the notification under Section 6 of the Land Acquisition Act. Therefore, the petitioners cannot challenge the scheme now after the publication of the notification under Section 6 of the Act. The argument that the scheme has lapsed after a period of three years from the date of the notifications also misconceived because Section 54 has to be read in conjunction with Section 56 and if a substantial step is taken by the I.D.A. towards the implementation of the scheme then the scheme will not lapse.
Acquisition of the land by agreement is only directory and not mandatory.
The absence of the preparation of the Zoning Plan would not render the scheme illegal because for preparation of a scheme the preparation of a Zonal Plan is not a condition precedent. Section 49 of the Adhiniyam is very clear on this point and this provision has to be read in conjunction with Section 38(2) of the Adhiniyam.
As regards the delegation of the power to the Collector it has been argued that Annexure Rule 6 clearly shows the delegation of the powers of the Government under the Land Acquisition Act to the Collector under the Rules of business and, therefore, the Collector had the requisite power to acquire the land under the said delegated functions.
As regards the omission to publish the notification for other purposes, than ring road it has been argued that the acquisition of land is shown for a public purpose so if any purpose is included in the Scheme, which is a public purpose, then such an omission to publish the details of the public purpose would not render the scheme illegal.
As regards the violation of Sub-section (3) and Sub-section (5) of Section 50 it is argued that the scheme is not for reconstitutoin of plots and that is why that provision is inapplicable.
On the point of discrimination is has been stated that the land of Soya Bean Centre has been excluded from acquisition, but that cannot be a ground to claim discrimination because the aforesaid land is already a Government land and it was not necessary to acquire that. Other lands not included in the scheme have been left out on the grounds which were reasonable.
Another objection has been raised that the petitioners have an alternative remedy of revision to the Director under Section 50 of the Adhiniyam, but they have not availed that remedy. Therefore, they cannot directly challenge the scheme before this Court.
As regards the violation of master plan, in the formulation of the scheme it has been stated that the scheme is prepared strictly according to the master plan. The only place where deviation is made is in a portion of Piplyarao to the north of the proposed road where due to establishment of industries some adjustment had to be made in the Zoning Plan which has to be followed in the scheme. In any case the Authority had given an undertaking that the land will only be used as per the master plan. Hence it is a fit case where the authorities should be allowed to go ahead with the scheme.
About the objection of acquisition of land for other purposes in the ring road, it is argued that it is a plan for integrated development and along with the road development on both the sides of the roads has to be made. Further more to make the scheme financially viable this scheme has to be framed as an integrated scheme.
As regards the notification having been published beyond the prescribed period it has been argued that the provision is directory to enable the land owners and the citizens to raise objections pertaining to the scheme and as such he delay in publication to the notification is not fatal. Furthermore the resolution was published in the newspapers under Section 50(2) within 30 days and it was sent for publication in the gazette within 30 days, but the publication was delayed for no fault of the authority. Similarly notification under Section 50(3) was published within two years of the publication under Section 50(2) of the Adhiniyam. The Supreme Court has already held in many cases that matters of public interest cannot be allowed to suffer on account of any negligence of any officer concerned. Therefore, it has been prayed that the petitions be dismissed.
11. Before considering the respective arguments advanced by the parties let us look at the scheme as prepared by the I.D.A. The first resolution No. 127 dated 20-12-1980 was passed by the I.D.A. pertaining to the formulation of a scheme. Thereafter by resolution No. 9 dated 30-1-1981 the I.D.A. decided to prepare a scheme for construction of Rule 1 in accordance with the alignment to be sanctioned by the Joint Director, Town and Country Planning and it was further directed to publish the scheme under Section 50(2) of the Adhiniyam. It was further directed that in addition to the land required for the ring road, the other lands which may be necessary to be acquired for the implementation of the scheme, may also be included in the scheme. In accordance with the resolution the scheme was prepared and on 23-2-81 the scheme was sent to the Government Press, Gwalior for publication in the gazette. Thereafter on 19-1-83, by resolution No. 4 it was decided that the draft scheme be published for inviting objections in accordance with Section 50(3) of the Adhiniyam, in the gazette and the newspapers publication was accordingly made in the M. P. Gazette dated 25-3-83 and in the newspapers. Thereafter objections were received and the objections were decided by the Indore Development Authority on 10-2-84. It was also decided that the land to be included in the scheme should also be specified in the notification in accordance with Section 50(7) of the Adhiniyam. Thereupon a memo was sent to the Collector, Indore by the Chief Executive Officer of the I.D.A. wherein a request was made to acquire the land required for the schemes under the provisions of the Land Acquisition Act. Thereafter by another letter dated 2nd Jan. 1986 a request was made for acquiring the lands mentioned in that memo for the scheme No. 94. Then, vide letters dated 13-1-87 and 4-3-87 requisitions were sent to the Collector Indore for the acquisition of the lands required for scheme No. 94 and on the basis of the aforesaid resolution for acquisition of the land required for scheme No. 94 sent on the above mentioned dates that the Collector initiated the proceedings under the provisions of the Land Acquisition Act. The petitioners now challenge the scheme itself and the acquisition proceedings before the Collector.
12. First of all we shall deal with the objection pertaining to the preparation of the scheme i.e. the scheme having been prepared without preparation of the Zoning Plan. According to the learned counsel for the petitioners the scheme could not have been prepared without first preparing the zoning plan because in absence of the zoning plan the petitioners could not know with certainty as to whether their land was included in the scheme or not and as such they were deprived of an opportunity to make a representation against the scheme.
In our opinion this argument has no merit. Section 20 of the Adhiniyam provides for the preparation of the zoning plan, wherein it has been provided that the Director may, on his own, motion, at any time after the publication of the development plan, or thereafter if so required by the State Government shall, within six months of such requisition, prepare a zoning plan. From the above it is clear that either the Director in his discretion may prepare a zoning plan or if the State Government may deem the preparation of the zoning plan necessary, then it shall issue directions to the Director to prepare a zoning plan and thereupon the Director shall be under an obligation to prepare a zoning plan within six months. Now, Section 21 of the Adhiniyam clearly says that the zoning plan shall enlarge the details of land use as indicated in the development plan and in general shall also indicate the lands which is liable to be acquired for public purpose i.e. for the use of the Union Government, the State Government, a Town and Country Development Authority, a Special Area Development Authority, a Local Authority, a Public Utility or any other Authority established by or under any enactment for the time being in force. But in the zoning plan also if the lands are designated for acquisition, such designation is not permissible unless the Director is satisfied that the acquisition shall be completed within 10 years of the preparation of the plan. Clauses (b) to (k) of Section 21(1) enumerate the details which have to be included in the zoning plan. As such although there is a provision for preparation of zoning plan wherein the lands likely to be acquired for the public purpose have to be indicated therein, but Section 50 of the Adhiniyam does not say that the preparation of a zoning plan is a condition precedent for preparation of a Town Development Scheme. For preparation of a Town Development Scheme a self contained procedure is provided in the Adhiniyam. Section 50 lays down the procedure for preparation of a scheme under Section 51 powers of revision against the preparation of Town Development Scheme have been provided and a power has again been given to the State Government under Section 52 of the Adhiniyam to issue directions pertaining to Development Schemes. As such reading Sections 21 and 50 of the Adhiniyam together it cannot be said that the preparation of the zonal plan is a must before the preparation of a scheme under Section 50 of the Adhiniyam.
13. As regards the second objection to the scheme on the ground that the scheme not being in consonance with the Master Plan is invalid; we on perusing the scheme as such find that the scheme is basically for constructing a ring road in the area covered by the scheme. But in some portion of Piplya Rao to the north of the proposed scheme there were already some industries in existence and, therefore, some adjustments were made in the zoning plan. In that area the lands are reserved for Regional Park.
13A. According to the learned counsel appearing on behalf of the petitioners in all 'these petitions, there can be no deviation from the Master Plan and any scheme wherein a deviation has been made from the Master Plan should not be deemed as a valid scheme. The learned counsel have placed reliance on AIR 1963 SC 1618 (State of Uttar Pradesh v. Jogendra Singh), (1963 All LJ 617) wherein the Supreme Court has held that where a discretion is conferred on a public authority coupled with an obligation the word 'may' denoting discretion should be construed to mean as a command. Therefore, although there is a discretion in the preparation of the Scheme the mandate of the Adhiniyam clearly says that the scheme shall be prepared strictly in accordance with the Master Plan. Therefore, even the slightest deviation from the Master Plan is fatal to the scheme. Another authority on which reliance has been placed is the judgment of the Andhra Pradesh High Court reported in AIR 1987 AP 171 (T. Damodhar Rao and Ors. v. The Special Officer Municipal Corporation of Hyderabad) wherein the Andhra Pradesh High Court has held that if a land is reserved under the plan for a recreational Park then the person from whom part of such land is acquired cannot use it for construction of residential houses. However, in that case a writ of mandamus was issued against the bodies for which the land was acquired to use the land strictly in accordance with the Master plan and not otherwise. In the instant case the I.D.A. has clearly admitted that in the whole scheme some portion of the land at Piplyarao is reserved for recretional purposes and is also a green belt whereas in the scheme some other uses have been indicated in view of the zonal plan of the area and the existing use of the land. In this regard there can be no two opinion that when a Master Plan is prepared for a particular city or an area Section 25 of the Adhiniyam clearly mandates that the development of that area shall be strictly in accordance with the Master Plan. When the scheme was prepared, the Master Plan provided that the area which has been marked for different uses than the recreational use is meant only for recreational use. Therefore, the I.D.A. cannot use that area for any other purpose then for the recreational purposes. An undertaking was given by the learned counsel for the I.D.A. that the scheme shall be implemented strictly in accordance with the Master Plan and if in a small area of the scheme some different purpose is indicated then also the I.D.A., while implementing the scheme shall strictly follow the Master Plan in the matter of implementation of the scheme.
14. This leads to a question whether in view of the slight deviation from the Master Plan in the scheme can the whole scheme be struck down as illegal? In this respect it has to be borne in mind that after the preparation of the scheme there was an opportunity to the present petitioners to file a revision under Section 51 of the Adhiniyam where....................... the Director of the Town and Country Planning could examine this factual, issues in details and thereafter a revision could be filed before the Government and the Government could also issue a direction. But in the instant case, except for one petitioner in M. P. No. 277 of 89 no other petitioner challenging the deviation has filed any revision before the State Government and after the declaration under Section 6 of the Land Acquisition Act this objection is being raised. As regards schemes of this magnitude as the present one, what has to be seen is the intention of the authority in formulating the scheme. If no mala fide is alleged and the scheme has been prepared in accordance with the provisions of law then if there may be a slight deviation the whole scheme cannot be quashed on this ground especially when a direction can be given to the authorities to implement that part of the scheme in conformity with the Master Plan. In T. Damodhar Rao and Ors. v. The Special Officer, Municipal Corporation of Hyderabad (supra) the Andhra Pradesh High Court had issued a mandate against the authorities for whom the acquisition was made to conform to the development plan. As such in view of the nature of the scheme, which is basically for the construction of a right (ring?) road wherein provisions have also been made looking to the future need of the City for different purposes, we hold that the whole scheme cannot be quashed on this ground, but that portion of the scheme, which is a very small portion, wherein a deviation has been proposed from the master plan in respect of the land use, the I.D.A. after the acquisition of the land shall use the land in question only in accordance with the master plan and not otherwise. When the development plan is prepared the planners take into consideration the ecological balance and if green belts have been reserved or area has been left open for recreational facilities then that has to be used strictly in accordance with the Master Plan and this is also the mandate of Section 25 of the Adhiniyam.
15. The next contention which has been raised by some of the petitioners is that some lands have been left out of the scheme whereas some petitioners who are similarly situated have not been extended that benefit. The statement filed by the I.D.A. shows that seven establishments were left out of the scheme for the reasons recorded in the orders of exemption and none of this land is included in the width of the ring road. The petitioners could place the facts in detail before the revisional authority and had an opportunity to say that the action of the I.D.A. is discriminatory. But it appears that the petitioners claiming discrimination had not resorted to this remedy available to them. We do not have the full facts of all the cases before us and it is difficult to hold that a discrimination is practised by the Development Authority in their cases. Although it has been pleaded that they have constructed houses and that is why their houses cannot be acquired because in other parts where the houses were constructed that area was left out of the scheme. The I.D.A. has clearly stated that the area in which the petitioners claim the construction of their houses has not been reserved for residential purposes in the Master Plan. There is no rejoinder to refute this averment. Therefore, in our opinion there is no case before us wherein we can hold that the attitude of the authorities was discriminatory. Further more the houses in question are located in an area which is not meant for residential purposes in the master plan. Therefore, they cannot claim a legal right to continue the existing land use as against the master plan. Therefore, we find no merit in this contention also.
16. It has next been contended by learned counsel for the petitioners that in accordance with the provisions contained in Section 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 Section 50 of the Adhiniyam. The learned counsel for all the petitioners have laid much emphasis on the fact that the word '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 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 Section 54.
17. On the other hand it has been argued that the word 'implementation' has to be construed in the context of the 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 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 Section 50 of the Adhiniyam provides that as soon as 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 into operation. After the final publication of the scheme a power of revision has been provided in Section 51, wherein the Director 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 years from the date of the publication of the final, scheme. Then again under Section 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 Section 54 of the Adhiniyam provides for the lapse of a scheme if it is not implemented within a period of three years.
Section 56 of the Adhiniyam provides that after the date of publication of the final scheme under Section 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 acquisition of the land may be made to the authority. Then Section 57 provides for the development which clearly says that when the land has vested in the Authority under Section 56 of the Act in accordance with the provisions of the Town Development Scheme, the authority shall take necessary steps to develop the land. 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.'
After a scheme is published under Section 50(7) of the Adhiniyam, the Director has an authority to revise the final scheme within a period of two years and then under Section 56 of the Adhiniyam the Authority has been given power to initiate negotiations for acquisition a within a period of 3 years, failing which the land acquisition proceedings may be initiated and Section 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 Section 54 of the Adhiniyam along With Sections 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 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 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 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 implementation of the scheme then that scheme shall lapse.
20. A Division Bench of this Court in thecase of Laxmichand v. The Indore Development Authority, Indore (M.P. No. 390 of1980 decided on 14-12-81) in which a similarargument was advanced that after the expiryof three years if the scheme is not implemented it lapsed, has held that Section 54 does notappear to apply when substanital steps havebeen taken within three years to implementthe scheme. The Court had also taken intoconsideration Sections 56, 57 and 58 of the Adhiniyam and has taken a view that the words'fails to implement' would mean failure totake any substantial steps for the implementation of the scheme and if no such step is takeniwithin three years the scheme will lapse. Ifsubstantial steps have been taken within threeyears though the scheme is not fully implemented within that period the scheme wouldnot lapse and proceedings for acquisition ofland under the scheme is a substantial steptowards its implementation. We are in respectful agreement with the aforesaid viewtaken by a Division Bench of this Court andhold that the word 'implement' occurring in Section 54 of the Adhiniyam cannot be construedto mean that even if a substantial step hasbeen taken by the authority towards theimplementation of the scheme then also thescheme shall lapse after the expiry of threeyears because of its non-completion withinthat period.
21. A plea has also been taken by some Housing Co-operative Societies that as the Government has granted them exemption under Section 20 of the Urban Ceiling Act therefore these lands could not be included in the scheme. In our opinion this objection is without any force for the simple reason that an exemption granted by Government under Section 20 of the Urban Ceiling Act does not have any effect on a scheme. The Adhiniyam does not provide that in a case where exemption has been given by the Government, such land, so exempted cannot be included in the scheme. Therefore, the contention is devoid of any merit and cannot be accepted.
22. A plea has also been raised that some lands included in scheme No. 94 were also included in some other schemes i.e. schemes Nos. 53 and 77. Therefore, those lands which were already included in a scheme could not be included in the present scheme. We find no merit in this contention also for the simple reason that a scheme can always be overlapping and if at an earlier date any scheme is prepared for a particular purpose and thereafter another scheme is prepared for another purpose wherein the same land or a part of the same land which was included in the earlier scheme may be necessary for the implementation of the scheme, then the law does not forbid the preparation of a subsequent scheme which may also include the lands included in the earlier schemes, therefore, this contention is also without any merit.
23. It has next been contended by the learned counsel for the petitioners that the provisions of Section 56 of the Adhiniyam have not been complied with inasmuch as that no attempt was made by the Authority to acquire the land by agreement. According to us the provisions contained in Section 56 of the Adhiniyam is directory as the word 'may' is used and not 'shall' and the word 'may' should be construed as 'shall' only when the intention of the Legislature is so.
The words 'may' and shall' have to be interpreted in the context of the Statute itself and if by reading the scheme of the Stature it may be permissible to draw an inference that the word 'may' used in a particular section shall be construed as 'shall' the court is not deprived from putting that interpretation if there be a mandate in the Statute itself to interpret the word 'may' as 'shall' However in the instant case a discretion has been given to the authority concerned to proceed with the acquisition proceedings by agreement, and reading the Act as a whole we are not prepared to interpret the word 'may' as shall'.
24. The Supreme Court has considered this aspect in the case of Kanhaiyalal Maneklal Chinani v. State of Gujarat (AIR 1970 SC 1188) wherein although there was a provision in the Bombay Provincial Municipal Corporation Act, 1949 in which the word 'shall' was used, the Supreme Court held that the word 'shall' has to be read as 'may' Section 77(1) of the Bombay Provincial Municipal Corporation Act, 1949 read as under (at page SC 1191; AIR 1970):
'The Commissioner shall acquire any immovable property, on behalf of the Corporation by agreement on such terms or prices or at rates or prices not exceeding such maximum as shall be approved by the Standing Committee.
It was provided in Section 78(1) that whenever the Commissioner was unable to acquire by agreement any immovable property under, Section 77, proceedings may be taken by the State for acquiring the same on behalf of the Corporation if the property is needed for public purpose under the Land Acquisition act. It was argued in that case that in accordance with Section 77 the Commissioner should have first acquired the property through negotiation and failing to do so only the acquisition proceedings could be started. Negativing this argument the Apex Court held that the provision for acquiring the land by an agreement is only an alternative and not a condition precedent for initiating the acquisition proceedings. It was open for the Commissioner to move the Provincial Government to take steps for acquisition of land even without any attempt to acquire the land by agreement.
25. In the instant case even the word 'shall' has not been used in the Act and even if the wordings in Section 56 would have been mandatory in nature then also in view of the aforesaid interpretation put by the Supreme Court in the similar circumstances it would have led us to hold that negotiations for acquisition of the land before initiating the proceedings under the land Acquisition Act were not mandatory. However in the instant case the Legislature in its wisdom has given a discretion to the authority to either proceed to acquire the land through negotiation or to resort to the proceeding under the Land Acquisition Act.
26. Relying on the aforesaid dictum of the Supreme Court, the Punjab and Haryana High Court, in the case of Smt. Daljit Kaur v. Municipal Corporation of Amritser (AIR 1989 P & H 159) has taken the same view that acquisition of land by agreement was not a condition precedent before initiation of the land acquisition proceedings. In that case also although there was a provision in the Act to acquire the land first by negotiation and that provision was not resorted to by the Municipal Commissioner, still the action for initiating the proceedings under the provisions of the Land Acquisition Act was held to be valid. Therefore we find no force in this contention of the petitioners that the acquisition proceedings are invalid on that ground.
27. It has next been contended that the request for acquisition of the land should have been made to the State Government and not the Collector as, vide notification dated 24-12-83 (Annexure F, in M.P. No. 141 of 89) the powers have been delegated to the Collector only to acquire the lands in which schemes are approved by the Government or wherein any Government department has made a request for acquisition. In the instant case the scheme is not approved by the Government and the Indore Development Authority is not a Government department. Therefore, the Collector has no authority to initiate the acquisition proceedings for want of jurisdiction. According to us this objection has been raised in ignorance of the subsequent order of the Government dated 22-3-85 (Annexure R-6 in M.P. No. 141 of 89) wherein the District Collectors have been designated as Dy. Secretaries to the Government of M.P. in the Revenue Department and consequently all the Collectors have been invested with he powers under the Land acquisition Act to exercise such powers under Sections 4, 5, 6 and 17 of the Land Acquisition Act and all the actions taken by the Collector shall be deemed to be the actions taken by the Government. Therefore, by the aforesaid order the Government has specifically delegated its powers to all the Collectors, to acquire the lands under the provisions of the Land Acquisition Act. Therefore, this objection is also without any force.
28. One of the petitioners has also raised an objections about the publication under Section 17(1) of the Land Acquisition Act and has challenged the urgency for acquisition of the land. Now it is not disputed that a ring road is urgently needed for the fast expending city of Indore and without a ring road the traffic in the City is already congested and people are suffering with the pollution caused due to the congestion in the traffic. A Division Bench of this court in the case of Chandmal v. State of M.P. (AIR 1985 MP 125) had in the case of acquisition of land for setting up of Industrial Estates in backward districts had held that waiving of Section 5A in a case of urgency is valid if there is no colourable exercise of power by the government. In the instant case none of the petitioners is in a position to show that the proposed acquisition is mala fide or is a colourable exercise of power. The action cannot also be held to be arbitrary. Therefore being in respectful agreement with the judgment in Chandmal's (supra) we hold that the action of the Government invoking Section 17(1) of the Land Acquisition Act is proper and justified.
29. The next argument of the learned counsel for the petitioners is that the scheme as finally published is different from the draft scheme which was published initially. Therefore, the scheme is bad in law. In our opinion this argument is also without any merit because when a draft scheme is published and objections are invited, then there is bound to be modification in the scheme if the objections are given serious consideration and the authority preparing the scheme takes into consideration the different aspects of the scheme brought to its notice before finalising it. It is not the case of any of the petitioners that the land not inculded in the draft scheme was included in the final scheme thus depriving any person an opportunity to raise any objection. Therefore, this plea raised by the petitioners is also devoid of any merit.
30. It has also been argued that provisions of Sections 50(5) and 50(3) have not been complied with because a committee as contemplated under these sections has not been formed. But in our opinion resort to these sections was not necessary for the simple reason that the scheme did not include any exercise for the reconstitution of plots. It is only when reconstitution of the plots may become necessary in the scheme, then the Committee under the aforesaid sub-sections of Section 50 has to be formed. Therefore, this objection is also without any force.
31. Another argument raised is that the land of Soya Been Centre which falls within a part of the scheme has not been included in the acquisition proceedings. The answer given by the I.D.A. in itself makes the aforesaid objection redundant. It is not disputed that the land in question belongs to the State Government and that land has not been dropped from the scheme. Therefore the I.D.A. has rightly said that as the land belongs to the Government it was not necessary to acquire that land again.
32. A grievance has also been made pertaining to the lack of details in the scheme. It has been argued that the scheme as published mentions only the ring road and the purposes were not specifide in the scheme. In this respect it is sufficient to say that the scheme has been published for fulfilling the public purpose, and therefore all the details in the publication were not necessary. The case of the Amristar Improvement Trust v. Baldev Inder Singh (AIR 1972 SC 182) relied by the learned counsel in support of their contention, in our opinion cannot help the petitioners because while interpreting the provisions of Sections 4 and 24 of the Punjab Town Improvement Act, the Supreme Court has held that areas which were not included in the Municipal limits cannot be included under a development scheme framed by that Trust under an expansion scheme or a housing accommodation scheme. The power have to be exercised in accordance with the conditions laid down in the Act. If the law provides for preparation of an expansion scheme, then such a scheme should be framed and an opinion should be formed that it is expedient in the public interest to do so and then in accordance with the provisions of the Act such a proposal has to be sent to the Government for obtaining sanction and the Government has also to form an opinion before granting such sanction. In the instant case it is not averred by any petitioner that the scheme as prepared does not include the purposes for which the lands are being acquired. On the contary the lands are being acquired for the purpose mentioned in the scheme. Therefore, the Supreme Court judgment does not land any support to the argument advanced by the learned counsel for the petitioners.
33. On the contrary while interpreting the provisions of the M.P. Town Improvement Trust Act, 1961 in the case Laxmichand v. Indore Improvement Trust (AIR 1975 SC 1303) the Supreme Court has held that under the Town Improvement Trust Act the Town Expansion Scheme may be framed even outside the limits of the town and it may envisage the industrial expansion to meet the growing needs of the community.
34. In the instant scheme nothing has been pointed out to us to indicate that the Indore Development authority to debarred from formulating a scheme as framed by the Authority. In this context we may also refer to the judgment of Smt. Somawati v. State, of Punjab (AIR 1963 SC 151) wherein it has been held that when a declaration is made by the Government under Sub-section (3) of Section 6 of the Land Acquisition Act pertaining to public purpose, it is final except the person challenging it is able to show that it is colourable exercise of power. In case the petitioners are not in a position to show that the declaration of the Government about the public purpose is a colourable exercise of power, the courts are precluded from ascertaining whether either of the ingredients of the declaration exists. It is for the State to decide whether in a particular case the purpose for which the land is needed is a public purpose or not. If the purpose for which the land is being acquired by the State is within the Legislative competence of the State the declaration of the Government will be final subject to the exception that there is a colourable exercise of power. If the person aggrieved is able to show that the purpose for which the Government has recorded its satisfaction being a public purpose is not a public purpose, but a private purpose or no purpose at all, then only the action of the Government shall be held to be colourable and not relatable to the power conferred upon it by the Act and only in that event the declaration shall be a nullity. Therefore, in the light of the aforesaid we find no force in the argument advanced by the learned counsel on this ground.
35. The other point on which a great emphasis has been laid by the counsel for the petitioners is that the notification under Section 4 were not simultaneously published in the gazette and the news papers and that the notification under Section 6 is also beyond a period of one year from the last date of publication of the notification under Section 4, This notification in respect of the lands in Kharjana has been challenged in some petitions. In some other petitions a plea has been raised that the Scheme has not been published in accordance with Section 50(2) of the Adhiniyam in the prescribed manner and the publication is also not simultaneous. In this respect reliance has been placed by the learned counsel on the judgment of this court in Anupan Shahkari Griha Nirman Samiti Maryadit, Raipur v. State of M.P. (AIR 1989 MP 163) wherein a Division Bench of this Court has held that when a draft development scheme was published after two years of the declaration of the intention under Section 50(2) of the Adhiniyam and the publication in the local newspapers were not simulteneous with the publication in the gazette coupled with the non-compliance of Rule 18(2) of the Rules framed under the Adhiniyam, therefore, the scheme was inoperative and invalid. According to the Division Bench where a power is given to do certain thing in a certain way the thing must be done in that way or not at all and the other method of performance are necessarily forbidden. Reliance was placed on the cases of the Supreme Court in State of U.P. v. Singhara Singh (AIR 1964 SC 358): (1963 All LJ 1093) and Giriwar Prasad v. Dukhu Lal, (AIR 1968 SC 90). The case, before the DB., of the petitioner was that respondent No. 3 the Raipur Development Authority has prepared a development scheme the draft of which was published in accordance with the provisions contained in Section 50(3) of the Adhiniyam. The scheme was challenged by petitioner the Housing Society before the court inter alia on the ground that the publication of the scheme under Section 50(3) of the Adhiniyam was defective as it was published beyond the period of two years of the publication of the declaration of the intention of the authority to prepared the scheme. Therefore, it was beyond the period prescribed under the law and the publication was also contrary to Rule 18(2) of the Rules framed under the Adhiniyam. The learned D.B. after considering the various provisions of law and rules has held that as the draft scheme was published under Section 50(3) of the Adhiniyam after the period of 2 years from the date of the publication of the declaration of the intention to frame a scheme, the scheme was vitiated. The scheme was also held to be vitiated further on the ground that the publication was not in accordance with Rule 18(2) of the Rules framed under the Adhiniyam.
36. In our opinion the aforesaid Division Bench judgment does not help the petitioner in view of the facts and circumstances of the present case. In that case from the facts it is evident that the petitioners were challenging the order of the Town and Country Planning Department refusing permission for development of the land and order of the Raipur Development Authority refusing to issue no objection certificate to the petitioner society for development of the land for housing purposes coupled with a declaration that the draft scheme published in the gazette dated 11-9-87 was invalid. The petitioners had during the period between the declaration of an intention to prepare development scheme under Section 50(1) of the Adhinuyam on 30-3-85 and the publication of the draft scheme on 11-9-87 had applied to the Regional Joint Director for permission to develop land on 2-6-86. The permission could not be accorded because the Raipur Development Authority refused to give a no objection certificate to respondent No. 3. The petitioners were informed on 16-11-87 that the certificate cannot be issued because the draft development scheme has been published under Section 50(3) of the Adhiniyam. It was also of significance in that case that two other Housing Societies were given no objection certificate before the publication of the draft scheme, after the intention to prepare a scheme have been published. As such it was a clear case wherein the prejudice was caused to the petitioner. In the instant case however there is no such case of prejudice. The facts of this case are similar to the case of B.K. Shrinivasan v. State of Karnataka (supra) wherein the Supreme Court had an occasion to consider the effect of Section 13(4) and Rule 33 of the Karnataka Town and Country Planning Act in respect of the publication of the draft scheme in the gazette informing public about availability for inspection of the plan prepared by the authority. The Supreme Court in that case was of the opinion that the provisions of Section 13(4) of the Karnataka Town and Counrty Planning Act contemplates besides permanently displaying the plain and the particulars in the offices of the Director and Planning Authority and keeping available a copy for the inspection of public at the office of the Planning Authority is a public notice to the general public and that the plan and regulations are prominently displayed and are avilable for inspection by the public. Such a public notice is required to be given a publication in the official gazette. The provisions providing for publication merely contemplates that the attention of the public should be invited to the display and the availability for inspection of the plan and its particulars. It was further held that when a defective publication which has otherwise served its purpose is not sufficient to render illegal what is published then such a defect is cured by Section 76J of the Karnataka Town and Country Planning Act, Where there was an effort to bring the plan and regulation to the notice of the public by giving notice of the plan in the official gazette, non-publication of the plan in the official gazette was curable defect especially when the defect or irregularity did not prejudice anybody (emphasis is by us).
36A. Now let us see the relevant provisions of the Karnataka Town and Country Planning Act and the provisions contained in the Adhiniyam. Section 13(4) of the Karnataka Act reads as under:--
'The Planning Authority, shall then published in the prescribed manner the outline Development Plan and the Regulations as approved by the Government. The plan and the particulars shall be permanently displayed in the offices of the Director and the Planning Authority and a copy shall be kept available for inspection of the public at the office of the Planning Authority.' Section 76J, of the Karnataka Act is as under:--
'No act done or proceedings taken under this Act shall be questioned on the ground merely of,
(a) to (d) xx xx xx xx xx xx
(e) Any omission, defect or irregularity not affecting the merits of the case.'
As regards the publication of the draft scheme Section 50(3) of the Adhiniyam reads as under:--
'(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 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.'
Rule 18(2) of the M.P. Nagar Tatha Gram Nivesh Niyam, 1975 (hereinafter called the Niyam) reads as under:--
'Not later than two years from the date of publication of the declaration in the form of the notice referred to in Sub-rule (1) the Town and Country Development Authority shall publish a public notice under Sub-section (3) of Section 50 in Form XIV in the 'Madhya Pradesh Rajpatra' and in one or more local Hindi newspapers to give due publicity intimating that the draft town development scheme has been prepared and is avilable for inspection in the office of the Town and Country Development Authority and regional office of Town and Country Planning Department concerned during office hours inviting objections and suggestions with respect to the said draft within a period of thirty days from the date of publication of such notice.'
Section 82(c) of the Adhiniyam reads as under;
'82 No act of a town and Country Development Authority or special Area Authority or any of its committee shall be invalid merely be reason of--
(a).. .. .. (b).. .. ..
(c) any irregularity in the procedure thereof not affecting the merits of the case.'
As such from reading the provisions of the Karnataka Act and the M. P. Adhiniyam with Niyam it is manifest that what has been contemplated under Section 50(3) is the publication of the draft scheme for the purpose of inviting objections to the Scheme and Rule 18(2) of the Rules provides for the mode of publication, the purpose being giving a notice to the public that the draft development plan has been prepared and the scheme is available for inspection at the office of the Town and Counrty Planning Department during office hours inviting objections and suggestions with respect to the said draft within a period of 30 days from the date of publication of such notice. As such the intention of the Legislature behind publication under Section 50(3) is the same as has been provided under Section 13(4) of the Karnataka Act. Now if during the declaration of intention or the preparation of the scheme and the final publication of the draft scheme if there is some delay which has caused prejudice to someone so as to deprive him of a valuable right which might have accrued to him during this period and that right has been refused to him because of the delay in publication, then it would be a case wherein it would be said that a prejudice has been caused to a person because of the delay in the publication. But in the instant case nothing has been brought to our notice to indicate that any person has been prejudiced because of the delay in the publication of the draft scheme. Therefore, in view of the Supreme Court judgment in the case of B.K. Srinivasan v. State of Karnataka (supra) a scheme cannot be held to be vitiated because of this defect. The provision in the Karnataka Act contained in Section 75-J is identical to that contained in Section 82(c) of the Adhiniyam and the provision of Section 82(c) saves the irregularity in the publication of the notice of the draft scheme because the irregularity does not affect the merits of the case.
38. It has also to be stated that the judgment of the Supreme Court in B.K. Srinivasan v. State of Karnataka was not considered by the Division Bench of this Court in Anupam Shahakari Griha Nirman-samiti Raipur v. State of M.P. (supra) because the facts in that case were different and prejudice was held to have been caused to the petitioner because of the delay in publication of the draft scheme. As such the aforesaid Division Bench case of this court is clearly distinguishable on facts. The facts of the Supreme Court judgment in B.K. Srinivasan's case being fully applicable to the facts and circumstances of the present case, we hold that the delay in publication of the notices pertaining to the scheme are not sufficient to hold the scheme as vitiated, consequently we find no merit in the contention of the petitioners on this point also.
39. As regards the objection pertaining to declaration under Section 6 being beyond time, the objection is based on the ground that the publication of the declaration is the relevant date for limitation whereas Section 6 of the Land Acquisition Act provides that the date of the declaration is material and not the date of publication. A Division Bench of the Allahabad High Court in the case of Umesh Aggarwal v. State of U.P. (AIR 1989 NOC 160 (All)) had an occasion to consider this issue and it is held that the words make a declaration used in Section 6 of the Act are to be understood in the sense of 'sign a declaration' as distinguished from publication 'sign a declaration' as distinguished from publication of declaration. It will accordingly, be sufficient for the purposes of Section 6 if the declaration has been signed within the statutory period of one year as enjoined upon under that section and it does not matter that the declaration has not been published in the manner indicated in that section within the said period. In the instant case we find that the notification under Section 4(1) was published on 26-7-87 whereas the declaration is dated 15th July, 1988. As such the declaration has been made within one year of the publication of the notification under Section 4(1). Agreeing with the Allahabad view, we hold that the objection on this ground to the validity of acquisition proceedings cannot be accepted.
40. As regards the simultaneous publication of the notification under Section 4(1) in the gazette and the public notice of substance of such notification, the Supreme Court in AIR 1984 SC 1721 (Deepak Pahwa v. Lt. Governor of Delhi) has held that Section 4(1) of the Land Acquisition Act does not prescribed that public notice of the substance of the notification should be given in the locality simultaneously with the publication of the notification in the official gazette or immediately thereafter. Publication in the official gazette and public notice in the locality are two different vital steps required to be taken under Section 4(1) before proceeding to take the next step of entering upon the land under Section 4(1). The time factor is not a vital element of Section 4(1) and there is no warrant of reading the words 'immediately' or immediately thereafter' into Section 4(1). Publication in the official gazette and public notice in the locality are the essential elements of Section 4(1) and not the simultaneity or immediacy of the publication and the public notice it cannot be said that if a publication is not simulteaneous or immediate it may lead to denial to the person interested of an opportunity to object the acquisition as prescribed under Section 5A. The period of 30 days prescribed for filing objection can be reckoned either from the publication of the date in the gazette or the date of the public notice of the substance of the notification in the locality, whichever is later. That is the only reasonable and practical way of construring Section 5A so as to advance the object of the provision which is to provide reasonable opportunity to interested persons to oppose the acquisition. However, it has been held that every time gap between the publication in the gazette and public notice in the locality is not fatal to the acquisition. The time gap may be brought about because of break-down of communication, strike or bandh or some other justifiable reasons. Thus, there cannot be any general proposition that an acquisition would be regarded as void if the notification published in the official gazette was not accompanied or immediately followed by public notice. But there should not be a long interval of time between the two. There should be continuity of action and should not appear to be broken by deep gap. However, if the gap may be such which may lead one to the prima facie conclusion of lack of bona fides in the proceedings for acquisition then it may become necessary to discover if there is any cause for delay or if the delay has caused prejudice to anyone.
41. In the light of the aforesaid judgment of the Supreme Court it is menifest that emphasis cannot be laid upon the simultaneity or immediacy of the publication of the notification and the public notice of the substance, if the publication of the substance and notification in the gazette is not simultaneous or immediate, it would not render the proceedings void. Only when a considerable gap, prima facie showing a dicontinuity in the two modes of publication is brought out on record then only the court would look into the reasons for the gap and would find as to whether the gap was bona fide or mala fide and as a result of the gap whether any party is prejudiced. As such in the matter of publication the view of the Supreme Court is very clear that when a particular mode of publication is provided in an enactment the Court has to look into the intention of the Legislature and the scheme of the Act and when to arrive at a decision whether the particular mode of publication is mandatory or, directory and whether the publication should be simultaneous if it has to be made by different modes or a gap may be permissible. Then the court has to look into the actual gap between the two modes of notifying the public of the intention of acquisition of the land. The court has further to look whether the gap was with a view to deprive any person from his right to make a representation and when the fact of actual prejudice has finally to be looked into. As discussed above, in the instant case the petitioners have not been able to demonstrate before us that they were prejudiced because the notification and the substance of the notification were not published simultaneously. Therefore, we find no force in the argument also.
42. In the result we find that these petitions filed against the acquisition proceedings for implementation of scheme No. 94 framed by the Indore Development Authority and challenging the framing of the scheme No. 94 are without any force and must fail. Therefore, the petitions are dismissed with no orders as to costs. Amount of securities if any, shall be refunded to the petitioner after verification.