Girnar Traders Vs State of Maharashtra & Ors
WITH CIVIL APPEAL NO. 292 OF 2011
Digambar Motiram Jhadhav Vs The Commissioner & Ors.
JUDGMENT
Swatanter Kumar, J.
Leave granted in SLP (C) No. 9734 of 2005. IA Nos.4 and 5 of 2009 in Civil Appeal No.3703 of 2003 are allowed subject to just exceptions and limited to this reference. Legalistic federalism was introduced as a technique of governance with the people of India adopting, enacting and giving unto themselves the Constitution of India on 26th November, 1949.The legislative competence of the Central and State Legislatures has been demarcated by the Constitution under Article 246, with the fields for exercise of legislative power enumerated in List I (Central List),List II (State List) and List III (Concurrent List) of Schedule VII to the Constitution of India. Power to enact laws, thus, is vested in the Parliament as well as in the State Legislative Assemblies within their respective spheres.
This is the paramount source for enactment of law, i.e., direct exercise of legislative power by the respective constituents. On the issue of distribution of powers between the Centre and the State, a Constitution Bench of this Court in Federation of Hotel & Restaurant Association of India v. Union of India [(1989) 3 SCC 634], noticed that the constitutionality of a law becomes essentially a question of power which, in a federal constitution, turns upon the construction of the entries in the legislative lists. Interpretative process, as a tool of interpretation, introduced new dimensions to the expansion of law enacted by Legislature, through Judge made law. Amongst others, doctrines of` legislation by reference' and `legislation by incorporation' are the creation of judicial pronouncements.
One of the earliest instances, where the Privy Council, then responsible for Indian Judicial system, accepted the plea of `legislation by incorporation' and interpreted the statute accordingly in the case of Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Ltd. [AIR 1931PC 149]. This judicial pronouncement was followed in different subsequent judgments and these doctrines were analyzed in greater depth for bringing out the distinction between them. The judgment of the Privy Council was referred with approval by this Court in different judgments including Municipal Commissioner of Howrah v. Shalimar Wood Products [(1963) 1 SCR 47]; Bolani Ores Ltd. v. State of Orissa [(1974) 2 SCC 777]; Mahindra & Mahindra v. Union of India[(1979) 2 SCC 529]; Ujagar Prints v. Union of India [(1989) 3 SCC488]; U.P. Avas Evam Vikas Parishad v. Jainul Islam [(1998) 2 SCC467]; Nagpur Improvement Trust v. Vasant Rao [(2002) 7 SCC 657]and Maharashtra State Road Transport Corporation v. State of Maharashtra [(2003) 4 SCC 200].
The principle that was enunciated by the Privy Council in the case of Hindusthan Co-operative Insurance Society Ltd. (supra) stated, "where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events, if it is possible for the subsequent to function effectually without the addition". Though this principle has been reiterated from time to time; with the development of law, still certain doubts were reflected in the judicial pronouncements of the courts as to the application of this principle as an absolute proposition of law. On the contrary, this principle received criticism from various quarters.
The critics said that it was causing impediments in smooth operation of the later law as well as abdication of legislative power by the concerned legislative constituent. Another criticism and argument which, in fact, was even advanced before us is that while approving the principle stated by the Privy Council, the subsequent Benches have not taken into consideration the impact of the judgment of the Constitution Bench of this Court in B. Shama Rao v. Union Territory of Pondicherry [(1967) 2 SCR 650]. A pertinent constitutional aspect that ought to have been brought to the notice of different Benches was that the federal structure of the Constitution had come into force which controlled governance of the country and therefore the principles, inter alia, stated by the Privy Council could not be adopted as law of universal application without appropriately modifying the 5stated position of law to bring it in complete harmony with the constitutional mandate.
In the case of Gauri Shankar Gaur v. State of U.P. [(1994) 1 SCC 92], one member of the Bench of this Court, relied upon the principle stated in Hindusthan Co-operative Insurance Society Ltd. (supra) and held that in a case of legislation by incorporation, subsequent amendment or repeal of the provisions of an earlier Act adopted cannot be deemed to have been incorporated in the adopting Act which may be true in the case of legislation by reference. This judgment was relied upon by another Bench of this Court in the case of State of Maharashtra v. Sant Joginder Singh Kishan Singh [1995 Supp.(2) SCC 475]. The amendments in various relevant laws and introduction and application of newly enunciated principles of law resulted in varied opinions.
A Bench of this Court in the case of Girnar Traders v. State of Maharashtra [(2004) 8 SCC505] (hereinafter referred to as `Girnar Traders-I) expressed certain doubts on the correctness of the law stated in the case of Sant Joginder Singh (supra) and referred the matter to a larger Bench. The Bench in Girnar Traders-I (supra) felt that there were good reasons for reading the provisions introduced by the Land Acquisition(Amendment) Act, 1984 (hereinafter referred to as the `Central Act 6of 1984') into Chapter VII of the Maharashtra Regional and Town Planning Act,1966 (for short, `the MRTP Act' or `the State Act') and Section 11A of the Land Acquisition Act, 1894 (for short, `the Land Acquisition Act' or `the Central Act') is one of such provisions. Thus, the Constitution Bench is called upon to examine whether the MRTP Act is a self-contained Code or not, if so, to what effect? Further, whether, in any event, all the provisions of the Land Acquisition Act, as amended by Central Act 68 of 1984 with emphasis on Section 11Acan be read into the provisions of the MRTP Act? The above questions require examination in light of the facts which, to some extent, have been referred to in the Order of Reference dated 14th October, 2004 which reads as under:
"This appeal is directed against the judgment of the Division Bench of the High Court of Judicature at Bombay, Aurangabad Bench, dismissing the writ petition of the appellant under Article 226 of the Constitution. The question for consideration is: whether all the provisions of the Land Acquisition Act, 1894 as amended by Central Act 68 of 1984 can be read into the provisions under Chapter VII of the Maharashtra Regional and Town Planning Act, 1966 for an acquisition there under. The appellant is a registered partnership firm owning certain lands situated within the 7jurisdiction of the second respondent Jalgaon Municipal Council.
The land owned by the appellant was subject to a reservation in the draft development plan of Jalgaon town, which was published on 19-3-1987. Since the appellant was unable to develop the land under reservation, and no steps were being taken by the Jalgaon Municipal Council to acquire the said land under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the MRTP Act"), the appellant issued a notice dated 19-1-1989 under Section 49(1) of the MRTP Act, calling upon the State Government to either confirm or refuse the purchase notice within the period fixed under Section 49 of the MRTP Act. On 25-7-1989 the State Government, acting under Section 49(4) of the MRTP Act, confirmed the purchase notice issued by the appellant. Despite confirmation of the purchase notice, the second respondent Jalgaon Municipal Council did not take any steps under Section 126 of the MRTP Act, nor did it apply to the State Government for acquisition of the land under reservation.
Ultimately, on 3-10-1991, the first respondent State Government issued a notification under Section 126(4) of the MRTP Act read with Section 6 of the Land Acquisition Act, 1894,declaring that the land concerned was required for a public purpose as indicated in the notification. This notification expressly mentions that the period of three years prescribed under Section 126(2) of the MRTP Act was over and, therefore, the State Government was acting under sub-section (4)of Section 126 of the MRTP Act. 8It is the case of the appellant that it had no knowledge of this declaration dated 3-10-1991as no individual notice has been served on it, though this declaration was published in the Official Gazette on 15-10-1991. Despite the declaration under Section 126(4) of the MRTP Act, as aforesaid, nothing happened till March1994. On 23-3-1994 the appellant issued second purchase notice under Section 49(1) of the MRTP Act.
By a reply dated 10-4-1995,the State Government informed the appellant that inasmuch as the earlier purchase notice dated 19-1-1989 had already been confirmed by the State Government on 25-7-1989, and further since the Jalgaon Municipal Council has already initiated proceedings for acquisition of the land, the second purchase notice was rejected. The appellant challenged the said rejection by his Writ Petition No. 2829 of 1996 before the High Court of Judicature at Bombay. This writ petition was disposed of by the High Court by its judgment and order dated 31-3-1997 by which the State Government and the Municipal Council were directed to initiate the proceedings for acquisition of the lands in question within one year and complete the same within the time prescribed under the MRTP Act. The High Court further directed, "incase the authorities fail to initiate the acquisition proceedings within the prescribed period, the lands of the petitioners shall be deemed to have been released from the reservation".
According to the appellant, despite the order of the High Court, it was not informed about any steps taken by the authorities concerned for acquisition of its land. On 13-4-1998, the 9appellant issued a letter to the Special Land Acquisition Officer, Respondent calling upon him to disclose whether any proceedings had been initiated for acquisition. The appellant, however, received no reply. On 18-2-1999, Respondent 3 issued a notice to the appellant under Section 12(2) of the Land Acquisition Act, 1894 calling upon him to accept the compensation for the land acquired as per the award. The appellant moved Writ Petition No. 822 of 2000 in the High Court of Judicature at Bombay and sought quashing of the notice under Section 12(2) of the Land Acquisition Act, 1894 and a direction enabling it to develop its land for residential purpose. By the impugned judgment, the High Court dismissed the writ petition by holding that the prayer for declaration of de reservation of the subject land as well as granting of permission to develop the property for residential purpose had already been declined by its earlier order dated 31-3-1997, which had become final as far as the appellant was concerned.
The High Court thus took the view, "the only issue we are required to examine i.e. whether the Land Acquisition Officer has complied with our directions and if the directions were not complied within the period of one year, as set out by us, whether the petitioner is entitled for the reliefs prayed for in this petition". The High Court held: "on perusal of the documents submitted before us we are satisfied that the requisite steps have been taken by the Special Land Acquisition Officer for acquisition of the subject land and after Writ Petition No.2829 of 1996 was disposed of, there was no necessity to initiate fresh action by the Planning Authority as contemplated under 10Section 126(1)(c) of the MRTP Act". In this view of the matter, the writ petition came to be dismissed.
Hence, this appeal by special leave. Mr V.A. Mohta, learned Senior Counsel for the appellant urged that the scheme of the MRTP Act shows that, on receipt of an application under sub-section (1) of Section 126, if the State Government is satisfied that the land specified in the application is required for a public purpose, it may make a declaration to that effect in the Official Gazette in the manner specified in the Land Acquisition Act,1894, and such declaration is deemed to be a declaration duly made under Section 6 of the Land Acquisition Act, 1894. The proviso to sub-section (2) of this section prescribes the period within which such declaration has to be made. Sub-section (3) of this section provides that on publication of the declaration under Section 6 of the Land Acquisition Act, 1894, the Collector shall proceed to take order for the acquisition of the land under the said Act, and thereafter, the provisions of the Land Acquisition Act, 1894 shall apply to the acquisition of the said land, subject to the modification introduced by sub-section (3),which pertains only to the market value of the land.
The only change made in the scheme of this Act is that, if the State Government fails to make the declaration under sub-section (2)within the time provided in the proviso there to, the declaration does not become bad as it is saved by sub-section (4). Under sub-section(4), notwithstanding the fact that the requisite declaration under sub-section (2) had not been made within the time provided therein, the State Government is empowered to issue 11a fresh declaration for acquiring the land in the manner provided by sub-sections (2) and (3)of Section 126 of the MRTP Act, but, if that be done, the market value of the land for the purpose of compensation shall be the market value at the date of such declaration made afresh. Mr. Mohta submitted that barring the above special modification introduced in the scheme of acquisition of land, in all other respects, the provisions of the Land Acquisition Act, 1894would mutatis mutandis apply to an acquisition under Chapter VII of the MRTP Act.
He pointed out that the MRTP Act contains neither any provision for payment of compensation, nor does it prescribe the time within which the award has to be made after a declaration is made under sub-sections (2),(3) or (4) of Section 126. It is urged that the legislature could not have left it vague and indefinite. In the submission of the learned counsel, this is a situation of invocation of the provisions of the Land Acquisition Act, 1894,not by incorporation, but by reference.
In other words, as and when the provisions of the Land Acquisition Act, 1894 are amended, all the amended provisions would be attracted to an acquisition under Chapter VII of the MRTP Act, unless barred expressly or by direct implication. The amendments introduced in the Land Acquisition Act, 1894 by Central Act68 of 1984 would all automatically apply. Consequently, the period of limitation prescribed under Section 11-A for making the award would squarely apply. Appellant urges that while sub-section (4) of Section 126 may save a declaration under Section 6 of the Land Acquisition Act, 1894 12from becoming bad because of lapse of time(though, subject to the modification with regard to the market value of the land prescribed therein), there is nothing in the MRTP Act which precludes, expressly or by direct implication, the provisions of Section11-A from applying to govern the period with in which the award has to be made. In the facts of the present case, there is no dispute that the declaration under Section 126(4) was made on 3-10-1991 and published in the Official Gazette on 15-10-1991, while the award is said to have been made on 18-2-1999.
In these circumstances, the award not having been made within the period of two years from the date of the declaration under Section 6, the entire proceedings for the acquisition of the land would lapse by reason of Section 11-A of the Land Acquisition Act,1894.Appellant relies heavily on the Statement of Objects and Reasons attached to the Bill preceding Act 68 of 1984. The attention of the legislature was drawn to the fact of pendency of acquisition proceedings for long time and, "the pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them". Finally, it is contended that the amendments introduced by Central Act 68 of 1984 in the Land Acquisition Act, 1894 were by way of a composite package and it is not open to anyone to pick and choose them in their application, unless so provided in any competent legislative enactment.
In the present case, there is nothing in the provisions of the MRTP Act which could oust 13 the application of the entire gamut of amendments introduced by Central Act 68 of 1984 and, therefore, all acquisitions, even under the MRTP Act, must be read subject to them. Learned counsel for the respondents, refuting the contentions urged on behalf of the appellant, placed heavy reliance upon the judgment of a Bench of two learned Judges in State of Maharashtra v. Sant Joginder Singh Kishan Singh1. Learned counsel for the respondents strongly urged that this judgment clinches the arguments against the appellant. The same contention as urged by the appellant before us has been considered and negatived in Sant Joginder Singh (supra) wherein it is observed (vide para 13) as under: "It is next contended that since no separate procedure was prescribed by the Act for determining the compensation, by necessary inference, the Central Act was intended to be applied mutatis mutandis to the acquisition under the Act. He seeks support from the award made by the Collector in that behalf.
It is true that there is no express provision under the Act to determine compensation for the land acquired under the Act. Therefore, by necessary implication, compensation needs to be determined by applying the principles in Section 23 of the Central Act. But, there is a distinction between procedural and substantive provisions of a statute. Determination of compensation by applying appropriate principles is relatable to substantive1 1995 Supp (2) SCC 475 14 provision, whereas making of award within a prescribed period is basically procedural. So, merely because Section 23 of the Central Act would apply to acquisition under the Act, it is not enough to hold that what is contained in Section 11-A would also apply. Further, what has been provided in sub-section (4) of Section 126 of the Act is a clear indication that failure to make the award within two years from the date of the declaration under sub-section (2) of Section 126 of the Act, would not render the notification published under Section 125 of the Act non est."
The appellant urges that Sant Joginder Singh (supra) needs reconsideration by a larger Bench. Upon careful consideration of the contentions urged before us, we are inclined to accept the submissions of Mr. Mohta for more than one reason. First, although the MRTP Act and similar Regional Town Planning Acts did not contain specific provisions for payment of compensation, when they were challenged as infringing Article 14 of the Constitution, their validity was upheld by reading the provisions as to payment of compensation contained in the Land Acquisition Act, 1894 into the Regional Town Planning Acts. (See in this connection Gauri Shankar Gaur v. State of U.P.2 and Nagpur Improvement Trust v. Vithal Rao3) Secondly, Sant Joginder Singh (supra) appears to have been doubted by a judgment2 (1994) 1 SCC 923 (1973) 1 SCC 500 Paragraphs 30 and 31 15 of another Bench of two learned Judges in Maharashtra SRTC v. State of Maharashtra4. This was a case under the provisions of the same Act viz. MRTP Act, 1966. After considering the judgments in U.P. Avas Evam Vikas Parishad v. Jainul Islam5 and Nagpur Improvement Trust (supra) it was held that the provisions with regard to compensation made by Central Act 68 of 1984, by addition of sub- section (1-A) to Section 23 and the increased amount of solatium under Section 23(2) and the interest payable under Section 28 would all apply to an acquisition under Chapter VII of the MRTP Act.
Dealing with Sant Joginder Singh (supra) the Division Bench of this Court explained away Sant Joginder Singh by observing : "The ultimate conclusion in Sant Joginder Singh case1 seems to rest on the ratio that there is sufficient indicia in the MRTP Act itself to exclude the applicability of Section 11-A of the LA Act in view of sub-sections (2) and (4) of Section 126. As we are approaching the question of correct interpretation of Section 126(3) from a different perspective, there is no need to enter into a further discussion as to whether and to what extent support can be drawn from this decision." Reading the judgment in Maharashtra SRTC (supra) it appears to us that, the Division Bench in that case did not seem to agree with the proposition that was laid down in Sant Joginder Singh (supra).4 (2003) 4 SCC 2005 (1998) 2 SCC 467 16There appears to be no good reason to shutout or preclude the amendments introduced by Central Act 68 of 1984 in the Land Acquisition Act, 1894 from applying to an acquisition under Chapter VII of the MRTP Act.
Or else, the consequence would be that, in respect of two landholders there would be arbitrary discrimination in the matter of acquisition of their lands, merely because in one case the acquisition is by the direct route of the Land Acquisition Act, 1894 and, in another case, through the indirect route of the MRTP Act. The vice of discrimination pointed out by a Bench of seven learned Judges in Nagpur Improvement Trust (supra) (vide para31) would affect such a situation. In order to avoid such a situation, and to save the constitutionality of the provisions of the MRTP Act, the provisions of enhanced benefits introduced by Central Act 68 of 1984 were read into the provisions of the MRTP Act, and an acquisition under the MRTP Act was held to be governed by the same provisions.
The same principle should apply in the matter of attracting the provisions of Section 11-A of Act68 of 1984 also to the acquisition under the MRTP Act. Thirdly, if the provisions of the MRTP Act are read as contended by the learned counsel for the respondents, in the light of Sant Joginder Singh (supra) then it would be open to the authorities, after issuing a declaration under sub-section (3), to go into hibernation and leave the matter hanging in perpetuity. That certainly would seriously affect the rights of the landholder preventing him from developing the land or alienating it, merely because the authority chooses to act under one Act instead 17 of the other.
This again, would attract the wrath of Article 14 of the Constitution, not only on account of discrimination, but also on account of arbitrariness. We, therefore, see no good reason as to why the provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984 should not be read into an acquisition under Chapter VII of the MRTP Act, to the extent not precluded by the MRTP Act, 1966. Section 11-A being one such section, it may have to be applied to the acquisition under Chapter VII of the MRTP Act. For these reasons, in our considered view, the decision in Sant Joginder Singh (supra) requires reconsideration by a larger Bench.
The Registry is directed to place the papers before the Hon'ble Chief Justice of India for appropriate directions in the matter." At the cost of repetition and also keeping in mind that certain important facts do not emerge in entirety from the Order of Reference, we will prefer to refer some of the essential additional facts as they appear from the record and, particularly, from the impugned judgment. Draft Development Plan was published on 19thMarch, 1987 and the lands of the appellant were reserved for a school and playground
On 19th January, 1989, the appellant served purchase notice under Section 49 of the MRTP Act which was confirmed on 25th July, 1989. The Planning Authority requested the Collector to initiate steps for acquisition of the land in question on 18thNovember, 1989 in furtherance to which the Collector, Jalgaon appointed Special Land Acquisition Officer (LAO) to initiate proceedings for acquiring reserved lands in the Development Plan.
However, the Planning Authority passed a resolution (No.736)recommending de-reservation of appellant's land but no further steps in accordance with law were taken and, on the contrary, on 3rdOctober, 1991, declaration under Section 126(2) of the MRTP Act in the manner specified under Section 6 of the Land Acquisition Act was issued along with notices under Section 9 of that Act, which had been denied by the appellant. It is alleged that this resolution was passed in collusion with the appellants. The State Government sanctioned the Draft Development Plan on 6th January, 1993 and draft award was prepared by the LAO on 20th July, 1993.
The application dated19th March, 1994 for developing the land, filed by the appellant under Section 44 of the MRTP Act, was turned down by the Municipality. The appellant served the second purchase notice under Section 49 of the MRTP Act which was also turned down vide order dated 10thApril, 1995. It may be noticed that the communication dated 10th April, 1995 was challenged by the appellant before the High Court by filing a writ petition being CWP No.2829 of 1996. In this petition, the appellant had prayed for quashing of the communication dated 10thApril, 1995 and declaring that the appellant's land would be deemed to have been released from the reservation. The Court, vide its order dated 31st March, 1997, rejected all the prayers and directed asunder:
"The respondents No.1 and 3 are directed to initiate the proceedings for acquisition of the lands in question within one year from today and complete the same within the time prescribed under the Act. In case the authorities fail to initiate the acquisition proceedings within the prescribed period, the lands of the petitioner shall be deemed to have been released from the reservation. Petition is disposed of accordingly." Final award was passed by the LAO on 10th February, 1999 and he issued notices to the parties under Section 12(2) of the Land Acquisition Act on 18th February, 1999. The appellant approached the High Court of Bombay, again, by filing Writ Petition No.822 of2000 in which the basic challenge to the action of the respondent was on the ground that the concerned authorities including the Planning Authority had failed to take steps for acquisition in terms of the order of the Court dated 31st March, 1997 within one year and, thus, the reservation had lapsed.
The land of the appellant, thus, should be deemed to have reverted to the appellant and he should be at liberty to develop the said land free from any encumbrance. The writ petition came to be dismissed summarily by the High Court vide order dated 29th March, 2000 which was challenged by filing a Special Leave Petition which subsequently had been registered upon grant of leave as Civil Appeal No.3703 of 2003. It has been noticed by the High Court in the impugned judgment, "Admittedly, a notice under Section 127 of the MRTP Act has not been issued by the appellant to the Planning Authority at any time and, therefore, the reliance on the provisions of Section 127 of the MRTP Act is totally misplaced.
The appellant had issued the first purchase notice under Section 49 of the MRTP Act to the State Government on 19th January, 1989 and it was confirmed by the State Government under Section 49(4) of the MRTP Act on 25th July, 1989." This is not even disputed by the appellant before us. Another important fact which needs to be noticed by us is that the order dated 31st March, 1997 passed by the High Court in Writ Petition (C) No.2829 of 1996, was clarified in the impugned judgment by stating that the LAO had taken steps in furtherance to his appointment by the Collector vide order dated 29th June, 1990 and had prepared the draft award on 20th July, 1993. As these facts were not brought to the notice of the Court, the directions issued by the High Court certainly did not mean that fresh steps for acquisition should be taken. In fact, the acquisition proceedings were expected to be completed by the LAO in furtherance to his appointment by the Collector in accordance with law.
Thus, the High Court, while referring to the second notice served by the appellant under Section49 of the MRTP Act, rejected all relief claimed by the appellant, as necessary steps had already been taken by the LAO. The appellant herein had argued in Girnar Traders-I (supra)that the decision of this Court in Sant Joginder Singh's case (supra)needs reconsideration by a larger Bench as it did not state correct law whereas the respondent-State of Maharashtra had taken up the plea that Sant Joginder Singh's case (supra) clinched the entire issue. The Bench, while accepting the contentions raised on behalf of the appellant, stated three reasons for referring the matter to a 22larger Bench. As is evident from para 17 of the Order of Reference, the Bench noticed that Sant Joginder Singh's case (supra) appears to have been doubted by judgments of other Benches of this Court in the cases of Maharashtra SRTC, Nagpur Improvement Trust and U.P. Avas Evam Vikas Parishad (supra) in which it was held that the provisions with regard to compensation in terms of Central Act 68 of1984, including Sections 23(1A), 23(2) and 28 of the Land Acquisition Act would be applicable to an acquisition under Chapter VII of the MRTP Act.
On the contrary, in Sant Joginder Singh's case (supra),the Court had held that there are sufficient indicia in MRTP Act itself to exclude applicability of Section 11A of the Land Acquisition Act in view of sub-sections (2) and (4) of Section 126 of the MRTP Act. The Bench also felt that voice of discrimination pointed by the Seven Judge Bench in Nagpur Improvement Trust v. Vithal Rao [(1973)1SCC 500] would affect a situation like the present case and such provisions may have to be read into the Land Acquisition Act. After expressing this view, the Bench chose to refer a restricted question for determination by the larger Bench that whether provisions of Section 11A of the Land Acquisition Act, amongst other provisions, introduced by Central Act 68 of 1984 would, apply to Chapter VII of the MRTP Act. Before we answer this legal controversy arising in the present case, we consider it appropriate to refer to the contentions raised by the learned counsel appearing before us.
The appellant has challenged the findings recorded by the High Court in the impugned judgment on various grounds. They have to be examined on merits by the appropriate Bench. We are primarily concerned with answering the question referred to this Bench in the above Order of Reference. In that regard, the contentions raised on behalf of the appellants are:
1. There is generic reference to the provisions of Land Acquisition Act in different Chapters of the MRTP Act. Hence, the provisions of the Land Acquisition Act will have to be read into the provisions of MRTP Act as it is legislation by reference. As a result thereto, all the provisions introduced by the amending Central Act 68 of 1984, including Section 11A of the Land Acquisition Act will be read into and become integral part of the MRTP Act.
2. The scheme under both the Acts is complementary to each other. Therefore, both the Acts have to operate in a common field and, then alone, it will form a unified workable scheme with due regard to dichotomy between reservation and acquisition.
3. In terms of Section 125 of the MRTP Act, the purpose of acquisition shall be deemed to be a public purpose within the meaning of the Land Acquisition Act. The provisions of Section 126 of the MRTP Act require application of the provisions of the Land Acquisition Act. Once notification under Section 126(2) is issued, automatically the provisions of Section 6 and complete mechanism for acquisition of land under the provisions of the Land Acquisition Act comes into operation and, thus, the provisions of Section 11A of the Land Acquisition Act would become part of such acquisition necessarily.
4. The provisions of the Central Act 68 of 1984 are procedural in their nature and application and are not substantive. These provisions, therefore, would form part of the MRTP Act. Hence, the judgment of this Court in Sant Joginder Singh's case (supra) requires reconsideration.
5. The view taken by this Court in the case of Sant Joginder Singh (supra), following Hindusthan Co-operative Insurance Society's case (supra), applying the principle of legislation by incorporation is not applicable to the present case and these judgments require reconsideration by this Court.6. Lastly and in alternative, it is contended that any other approach would vest the concerned authorities with the choice of initiating proceedings under either of these Acts which have substantially different consequences, in fact and in law. It is also argued that if Section 11A of the Land Acquisition Act is not read into or treated as part of the MRTP Act, then it will amount to discrimination between the similarly situated persons whose lands are subject matter of acquisition. Reacting to the above submissions, the learned counsel appearing for different respondents contended that:1. The MRTP Act is a self-contained Code in itself. Consequently, it is not necessary for the Court to go into the larger question, whether it is a case of legislation by reference or legislation by incorporation.. In the alternative, even if the Court decides to examine this aspect, it is a clear case of legislation by incorporation. Various provisions of the MRTP Act have referred to specific provisions of the Land Acquisition Act and no general application of the provisions of the Land Acquisition Act is contemplated under the provisions of the MRTP Act. Since it is legislation by incorporation, the amended provisions inserted by Central Act 68 of 1984 cannot be read into the MRTP Act. Both the laws are wholly dissimilar, operate in different fields and have different objects. The Land Acquisition Act is a Central legislation relatable to Entry 42 of List III while the MRTP Act is enacted by the State Legislature with reference to Entries 5 and 18 of List II of Schedule VII to the Constitution.3. These being the legislations enacted by two different bodies for different purposes cannot attract any of the afore stated principles. Both the Acts operate in different fields and cannot be read together to create a coherent legislation as that would frustrate the very object of the legislation falling exclusively in the domain of the State Legislature.
274. The State enactment has provided for definite time frame in regard to different subjects, except for making of the award after a declaration in terms of Section 126(2) or 126(4) of the State Act as the case may be, which by necessary implication, would mean intended exclusion of the provisions of Section 11A of the Central Act.5. On following the principle stated by the Constitution Bench in the case of B. Shama Rao (supra), the other judgments of this Court cannot be stated as a binding precedent. There shall be abdication of its constitutional functions by the State Legislature as it would not be aware of and able to apply its mind to the amendments made to the Central Legislation, if the principle of legislation by reference is applied to the present case. It would lead to undesirable consequences. SCHEME UNDER THE RESPECTIVE ACTS :THE MAHARASHTRA REGIONAL & TOWN PLANNING ACT, 1966
The MRTP Act was enacted by the legislature of the State of Maharashtra as it was expedient to make provisions for the planning, development and use of the land in regions established for the purpose of that Act, for the constitution of Regional Planning Boards there for and to make better provisions for the preparation of development plans with a view to ensure that the town planning scheme is made in a proper manner and its execution is made effective. According to the statement of objects and reasons of this enactment, the Bombay Town Planning Act, 1954 had made planning of land possible only within the areas of local authorities and there was no provision to control development of land in the important peripheral areas outside the municipal limits. This resulted in development of land in the peripheral areas in an irregular and haphazard manner which was clearly demonstrated in the vast areas outside Greater Bombay, Poona and other important urban centres.
The object of regional planning was to facilitate proper planning of such extensive areas of land, called Regions in the Bill, having common physical, social and economic problems so that certain matters such as distribution of population and industries, roads and high ways, preservation of good agricultural lands, reservation of green belts and preservation of areas of natural scenery etc. could be dealt with and planned comprehensively on a regional level. The Bill had sought to improve the provisions of the Bombay Town Planning Act, 1954 in regard to preparation and execution of development plans to ensure that such plans are made properly and expeditiously. Every planning Authority is required to appoint a Town Planner for carrying out surveys and to prepare an existing land use map and formulating proposals of the development plan within the frame work of the Regional Plan, where one exists, for the consideration of the Planning Authority. The Planning Authority is entitled to refuse or grant, subject to certain conditions, permission to develop in accordance with such plan.
This order of the Planning Authority is appealable before the Prescribed Officer in the State Government. Unauthorized development was made penal and could be removed and the use contrary to the plan could be discontinued. One of the main features of the Bill was the provision for creation of new towns by means of Development Authorities. The problems of overcrowding of population and industries, traffic congestion, inadequacy of public services and utilities like schools, hospitals, markets, water supply, drainage and road, rail transport etc. became so acute in the regions of Greater Bombay and Poona that it became necessary to consider proposals for the dispersal of population and industry from such centres and their reallocation at suitable places within the Region.
The MRTP Act required every local authority to prepare a 30development plan for the area within its jurisdiction. Under such plan, the local authority was to allocate land for different uses, e.g. for residential, industrial, commercial and agricultural and to reserve sites required for public purposes as well. Town planning schemes could be made in respect of any land, whether open or built up and incremental contribution, i.e. betterments in land value could be recovered from owners of the plots benefitting from the proposals made in the scheme. These were the features of the Bombay Town Planning Act, 1954 which extended to whole of the State of Maharashtra excluding the City of Nagpur and, thus, a more comprehensive and effective legislation was contemplated by the legislature. The scheme of the MRTP Act is, primarily, focused on planning and development of the land in the entire State of Maharashtra. The MRTP Act provides for development plans from macro to micro level which includes specifying the land to be used for providing various public amenities and services.
That is the precise reason that the expression `development' under Section 2(7) of the MRTP Act has been defined in very wide terms. It is difficult to comprehend any activity relating to land and planning which could fall outside the scope of this definition. Section 2(9) of the State Act defines` development plan' to mean a plan for development or redevelopment of the area within the jurisdiction of the Planning Authority and includes revision of a development plan and proposals of a Special Planning Authority for development of land within its jurisdiction. The` regional plan' means a plan for development or redevelopment of a region which is approved by the State Government and has come into operation under the MRTP Act.
The expression `town planning scheme' has not been defined as such but the term `scheme' includes a plan relating to town planning scheme in terms of Section 2(30) of the State Act. Corresponding to each plan there are authorities like` Development Authority' which means a New Town Development Authority constituted or declared under Section 113 of the MRTP Act,` Planning Authority' which means a local authority including a Special Planning Authority and the Slum Rehabilitation Authority appointed under Section 40 of this Act and Section 3(c) of the Maharashtra Slum Areas Improvement Clearance & Redevelopment Act, 1971respectively. `Region' means any area established to be region under Section 3, `Regional Board' or `Board' means Regional Planning Board constituted under Section 4,
`Regional Planning Committee' means a committee constituted under Section 10.`Development Rights' in terms of Section 2(9A) means the right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilize the Floor Space Index of land utilizable either on the remainder of the land partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide. Once a region has been created under the provisions of the MRTP Act then a regional plan is to be prepared and it should provide formatters contemplated under Section 14.
This plan is to be submitted to the State Government for approval. The Regional Board, before preparing common regional plan and submitting it to the State Government for approval, is required to carry out necessary surveys and prepare an existing land use map of the region or such other maps as are considered necessary and then prepare a draft regional plan. It shall be published in the Official Gazette in the manner prescribed and shall be open to inspection at all reasonable hours mentioned therein inviting objections and suggestions from any person with regard to draft plan before the specified date which is not to be earlier than four months from the publication of the notice. Then this plan has to be notified in accordance with the provisions of Section 17 of the MRTP Act. It is important to note that once the draft regional plan or regional plan has been notified and published then Section 18 of the MRTP Act places a restriction on change of use of land or development thereof which reads as under:
"18. Restriction on change of user of land or development hereof. (1) No person shall on or [after the publication of the notice that the draft of Regional plan has been prepared or the draft Regional plan has been approved], institute or change the use of any land for any purpose other than agriculture, or carry out any development, in respect of any land without the previous permission of the Municipal Corporation or Municipal Council, within whose area the land is situate, and elsewhere, of the Collector. (2) Notwithstanding anything contained in any law for the time being in force the permission referred to in sub-section (1) shall not be granted otherwise than in conformity with the provisions of the draft of final Regional plan. (3) Without prejudice to the provisions of sub- sections (1) and (2) or any other provisions of this Act, any person intending to execute a Special Township Project on any land, may make an application to the State Government and on receipt of such application the State Government may, after making such inquiry 34 as it may deem fit in that behalf, grant such permission and declare such project to be a Special Township Project by notification in the Official Gazette or, reject the application" Section 20 of the State Act empowers the State Government to revise or modify the regional plan in accordance with the prescribed procedure.
Chapter III of the MRTP Act deals with preparation, submission and sanction of Development Plan and, primarily, provides for use of land for purposes such as residential, industrial, commercial, agricultural, recreational, schools, colleges and other educational institutions, open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, transport and communication, water supply, drainage, sewerage amongst other public utilities and amenities. The Draft Development Plan is also to be submitted to the State Government in terms of Section 30 of the MRTP Act. Chapter IV of this Act contains certain significant provisions and relates to control of development and use of land included in the development plans. Section 43 of the MRTP Act states that after the date on which, the declaration of intention to prepare a development plan for any area is published in the Official Gazette or after the date on which a notification specifying any undeveloped area as a notified area, or any area designated as a site for a new town is published in the Official Gazette, no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the Planning Authority. However, the proviso to this Section provides that no such permission shall be necessary for carrying outworks for the maintenance, improvement or other alterations of any building which do not materially affect the external appearance thereof as specified in that Section. Even in terms of Section 49 of the MRTP Act where a purchase notice is served, the person has to call upon the authorities to purchase his interest in the land for reasons contained in clauses (a) to (e) of sub-section (1) and in accordance with the provisions of this Act.
The Government/Appropriate Authority, other than the Planning Authority is vested with the powers under Section 50 of the MRTP Act to delete reserved or designated land from interim or draft or final development plan and in terms of Section 68 of the MRTP Act, the State Government is also vested with the power to sanction even the draft scheme. Section 69 of the MRTP contemplates similar restrictions on the use and development of the land upon declaration 36of town planning scheme. Town planning schemes are required to be prepared for the purposes of implementing the proposal in the official development plan in terms of the provisions of Chapter V of MRTP Act. Another aspect which requires consideration of this Court is reference to Section 72 of the MRTP Act which refers that the matters in relation to such schemes to be adjudicated upon by the Arbitrator who has been vested with wide powers and duties.
The Arbitrator shall follow the procedure prescribed under Section 72(3), estimate the value and fix difference between the values of the original plots and the values of the final plots included in the final scheme and estimate the amount of compensation payable under Section 66 of the MRTP Act, estimate the reference of claims made before him and decide the dispute of ownership amongst other specified matters. Appeal against the decision of the Arbitrator under clauses (iv) to (xi)(both inclusive) and clauses (xiv) to (xvi) of sub-section (3) of Section72 of the State Act lies to a tribunal constituted under Section 75 of the MRTP Act. In fact, certain decisions of the Arbitrator are final and binding on the parties including the Planning Authority. However, some of such decisions do not attain finality qua filing of civil suits, e.g. disputes under Section 71 of the MRTP.
Thus, an adjudicatory 37mechanism covering larger aspects of planning and execution is provided under the provisions of the MRTP Act. Preparation, submission and sanction of development plans are basic functions of various authorities constituted under Chapter VI of the MRTP Act with ultimate object of execution of such plan. The MRTP Act contemplates preparation, approval and finalization of an interim or draft plan and, as already noticed, with the publication of such plans, the restrictions operate. We may also notice that Section 14(e) of the MRTP Act contemplates reservation of sites for new towns, industrial estates and any other large scale development or project which is required to be undertaken for proper development of the region or new town. Section 113 of the State Act provides for designation of a site for a new town. The most important facet of this legislation is the provisions with regard to acquisition and lapsing of reservation and powers of the Government in that regard.
These aspects have been dealt with under Chapter VII of the MRTP Act. Section 125 of the MRTP Act provides that any land required, reserved or designated in a Regional Plan, Development Plan or Town Planning Scheme for a public purpose or purposes, including plans for any area of comprehensive development or for any new town shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act. Section 126 of the MRTP Act contemplates that after the publication of a draft Regional Plan, a Development Plan or any other plan or Town Planning Scheme, if any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A of the MRTP Act, acquire the land, in the mode specified in that Section. Section 126(2) of the MRTP Act also contemplates that where an application has been moved under Section 126(1)(c) of the MRTP Act to the State Government for acquiring such land under the Land Acquisition Act, then the Government is to act in accordance with and subject to the provisions of Section 126(2) of the MRTP Act.
If the State Government is of the opinion that any land included in such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in Section 6 of the Land Acquisition 39Act (emphasis supplied). Such declaration, notwithstanding anything contained in the Land Acquisition Act, shall be deemed to be a declaration duly made under that Section. In other words, there is no requirement to comply with the provisions of Sections 4 and 5(A) of the Land Acquisition Act before such declaration is published.
It is further provided that subject to the provisions of Section 126(4) of the MRTP Act no such declaration shall be made after the expiry of one year from the date of publication of the draft regional plan, development plan or any other plan or the scheme, as the case maybe. After such declaration is published, the Collector shall proceed to take order for the acquisition of the land under the Land Acquisition Act and provisions of that Act shall apply to the acquisition of the said land with the modification that date of market value of the land to be acquired shall be determined with reference to sub-section 3(i) to3(iii) of Section 126 of the MRTP Act. Sub-section (4) of Section 126empowers the State Government to make a fresh declaration for acquiring the land where the period of one year, as specified in the proviso to sub-section (2) to Section 126 of the MRTP Act, has lapsed but then the market value of the land would be the market value on the date of publication of fresh declaration. Section 126 of the MRTP Act reads as under: "
Acquisition of land required for public purposes specified in plans. (1) When after the publication of a draft regional Plan, a Development or of land any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time of the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A acquire the land, - (a) by agreement by paying an amount agreed to, or (b) in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee-paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor's interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Land Acquisition Act, 1894, Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final 41Development Control Regulations prepared in this behalf provide, or(c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894, and the land(together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this sections or under the Land Acquisition Act, 1894, as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case maybe, any Appropriate Authority.(2) On receipt of such application, if the State Government is satisfied that the and specified in the application is needed for the public purpose therein specified, or if the State Government (except in cases falling under section 49 and except as provided in section113A) itself is of opinion that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894, in respect of the said land, The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section :Provided that, subject to the provisions of sub-section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, 42Development Plan or any other Plan, or Scheme, as the case may be.(3) On publication of a declaration under the said section 6, the Collector shall proceed to take order for the acquisition of the land under the said Act; and the provisions of that Act shall apply to the acquisition of the said land with the modification that the market value of the land shall be, -
(i) where the land is to be acquired for the purposes of a new town, the market value prevailing on the date of publication of the notification constituting or declaring the Development Authority for such town;
(ii) (ii) where the land is acquired for the purposes of a Special Planning Authority, the market value prevailing on the date of publication of the notification of the area as an undeveloped area; and
(iii) in any other case the market value on the date of publication of the interim development plan, the draft development plan or the plan for the area or areas for comprehensive development, whichever is earlier, or as the case may be the date or publication of the draft town planning scheme :
Provided that, nothing in this sub-section shall affect the date for the purpose of determining the market value of land in respect of which proceedings for acquisition commenced before the commencement of the Maharashtra 43 Regional and Town Planning (Second Amendment) Act, 1972: Provided further that, for the purpose of clause (ii) of this sub-section, the market value in respect of land included in any undeveloped area notified under sub-section (1) of section 40 prior to the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972, shall be the market value prevailing on the date of such commencement. (4) Notwithstanding anything contained in the proviso to sub-section (2) and sub-section (3), if a declaration,] is not made, within the period referred to in sub-section (2) (or having been made, the aforesaid period expired on the commencement of the Maharashtra Regional and Town Planning [(Amendment) Act, 1993)],
the State Government may make a fresh declaration for acquiring the land under the Land of Acquisition Act, 1894, in the manner provided by sub-sections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette, made for acquiring the land afresh." Section 127 of the MRTP Act relates to lapsing of reservations. The un amended provisions of Section 127 MRTP Act, subject to satisfaction of the ingredients therein, provide that if any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or no steps for acquisition have been taken then the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the
