Rajendra Shankar Shukla & Ors. etc. Vs. State of Chhattisgarh & Ors. etc.
[Civil Appeal Nos. 5769-5770 of 2015 arising out of SLP (C) Nos.30942-30943 of 2014]
[Civil Appeal Nos. 5771-5775 of 2015 arising out of SLP (C) Nos.30049-30053 of 2014]
V. GOPALA GOWDA, J.
Leave granted.
The appellants-land owners have filed the present group of appeals challenging the common impugned judgment and order dated 16.6.2014 passed by the Division Bench of the High Court of Chhattisgarh at Bilaspur, in Writ Appeal Nos.379, 380, 381, 382, 389 and 393 of 2013 wherein the High Court upheld the order dated 15.4.2013 passed by the learned single Judge of the High Court of Chhattisgarh, Bilaspur, upholding the validity of the Town Development Scheme, namely, 'Kamal Vihar Township Development Scheme No. 4' (for short 'the KVTDS').
The facts of the case are stated hereunder:-
The appellants herein are the landowners of portions of land (with some construction thereon) situated in the villages Dumartarai, Tikrapara, Boriya Khurd, Deopuri and Dunda of Raipur District in Chhattisgarh State. The respondent No.2-Raipur Development Authority (RDA) was established under Section 38(1) of the M.P. (C.G.) Nagar Thatha Gram Nivesh Adhiniyam, 1973 (for short 'the Act of 1973'). The KVTDS was planned by the respondent No.2 - RDA while discharging its functions under Section 38(2) of the Act of 1973. Though the KVTDS initially started as a small Town Development Scheme, it subsequently included the aforesaid five villages in Raipur within its Scheme.
As per the evidence on record produced before us, which are the written communications between the State Government, respondent No.2-RDA and the Director of Town and Country Planning, the KVTDS was initially planned and proposed for an area of 416.93 acres only.
The Chief Executive Officer of the respondent No.2-RDA had issued public notification declaring its intention of coming up with an integrated township of 416.93 acres only. However, a month after the publication of said notification, the Board of respondent No.2-RDA, increased the area of the integrated Township Scheme from 416.93 acres to 2300 acres which resulted in the inclusion of the lands of the appellants herein. At present, the said Scheme has a total project area of 647.84 Hect., out of which the area available for development is 610.46 Hect. While 482.29 Hect. of the total land is private land, 128.17 Hect. is government land. According to the development plan, in the above area of 647.84 Hect., further areas have been marked for recreational land, roads and lanes and other miscellaneous infrastructure like educational, hygienic and various public purpose amenities.
The broad features of the Scheme would show that there shall be 15 Sectors and the estimated cost of development of infrastructure would be Rs.1085 crores. The Government agreed to hand over its land to the respondent No.2-RDA and the land belonging to the private owners were to be taken over by the consent or by acquisition under Section 56 of the Act of 1973. The RDA planned to develop the land and hand over about 35% of the developed plot to the land owners without charging any contribution/incremental cost from them in return for their acquired land for the development of the KVTDS under Section 56 of the Act of 1973. The remaining area of their undeveloped plot would be retained and subsequently, may go to the other land owners or may be utilized for constructing other facilities under the development Scheme.
According to respondent No.2-RDA, 15% of the developed plots have also been reserved for economically weaker sections which come to about 32.15 Hect. Out of the total 4969 private land owners, 39 land owners did not agree to the Scheme/procedure adopted and preferred 23 writ petitions on various grounds which were dismissed by the learned single Judge of the High Court of Chhattisgarh, Bilaspur. Aggrieved by the same, six Writ Appeals were filed by 13 land owners. The Division Bench of the High Court of Chhattisgarh at Bilaspur, after considering the facts, circumstances and evidence on record of the cases, upheld the validity of the KVTDS planned by the RDA and dismissed the appeals on the ground that the same were devoid of merit. Hence, the present appeals.
We have heard the learned senior counsel for both the parties. On the basis of the factual circumstance and evidence on record produced before us and also in the light of the rival legal contentions raised by the learned senior counsel for both the parties, we have broadly framed the following points which require our attention.
The main legal issues which arise in this case are :-
Whether the KVTDS provide the authority to the Director of the respondent No.2-RDA, to formulate Town Development Scheme and is it in contravention to the 73rd and 74th Amendments to the Constitution of India? Whether the Town Development Scheme in the present case is formulated as per the provision mentioned in Section 50(1) of the Act of 1973?
Whether the subsequent alteration of land acquired, is in consonance with the provisions of the Act?
Whether the Town Development Scheme framed in the present case by the respondent No.2-RDA, in the absence of a zonal plan, is legal and valid?
Whether the Act of 1973 authorises the Town Planning and Development Authority to reconstitute the plots and change the land use apart from public utility?
Whether the proposal of the RDA to return 35% of the area of the land taken away from the land owners/appellants is legally permissible? While planning the KVTDS, whether the respondents ensured compliance with EIA clearance procedure from the competent authority? Answer to Point No. 1 As per Part IX and Part IX-A of the Constitution, a zonal plan has to be framed by democratic institutions as prescribed under its provisions. On the other hand, the Respondent No. 2- RDA, has framed the Town Development Scheme without consulting or taking into account the views of the Panchayat and the District Planning Committee which are constitutionally authorized to undertake the task of framing Scheme.
It was argued by Mr. Gopal Subramaniam, learned senior counsel on behalf of the appellants that the Respondent No. 2- RDA had assumed the role of town planning authority by proposing and framing KVTDS with land use which is different from the one prescribed in the Raipur Master Plan (Revised) 2021. In fact, the proposal made by Respondent No. 2- RDA defined spaces that are meant for business Districts, public use, schools, house and parks etc. This task taken up by the Respondent No. 2- RDA of allocation of spaces is by statute vested with the 'local authority' under its power to make zonal plans.
It was further contended by the learned senior counsel that the Raipur Master Plan (Revised) 2021, on the basis of which the KVTDS claims to be implementing the Scheme has also amended the same without the participation of the District Planning Committee which is the constitutionally empowered body to carry out social and economic planning for a District. The 73rd and 74th Amendments were inserted in the Constitution of India with the avowed object and intention of strengthening the local self- governance both at the village and District level. It was argued by the learned senior counsel Mr. Gopal Subramaniam that self-governance was very much a part of the Indian society historically.
In support of his contention, he relied upon the words of Sir Charles Metcalfe, the Acting Governor General of India from 1835 to 1836, on the functioning of the village panchayats made during the 19th century which are recorded as under: "The village communities are little republics, having nearly everything they can want within themselves, and most independent of any foreign relations. They seem to last where nothing else lasts. Dynasty after dynasty tumbles down; revolution succeeds after revolution; but the village community remains the same.
The union of the village communities, each one forming a separate little state, in itself, has I conceive, contributed more than any other cause to the preservation of the people of India, through all the revolutions and changes which they have suffered, and is in a high degree conducive to their enjoyment of a great portion of freedom and independence"[1] It is imperative to note here that the Constitution, initially did not vest with power on villages or communities as units. It rather vested power on individual as units of the society.
It was proposed by Dr. B.R. Ambedkar, Chairman of the Drafting Committee of the Constitution, that the administration of India should not be carried out at village level since they are ignorant units of communities immune from the progress of the city and are also influenced by social biases and prejudices. With this biases and prejudices, it was apprehended that India, at the time during the drafting of the Constitution, were not suited to be ruled at village and panchayat level. On the other hand, Dr. Ambedkar proposed that there should be a strong Centre governed by the Rule of Law for the administration of the country.
Formal inclusion of the panchayats in the constitutional system was deferred for a later time since the framers of the Constitution deemed it fit to introduce social reforms in the village prior to conferring upon them the power of self-governance, in the light of the constraints faced by the new republic of India. Article 40, therefore, was inserted in the Constitution in the form of Directive Principles of State Policy in Part IV of the Constitution so as to move towards the vision of introducing local governance when the time seems fit.
Though, this was the decision taken at the time of the drafting of the Constitution, most of the framers in the Constituent Assembly reposed their faith on the potential of village panchayats and were of the opinion that self-governance at local level is the only way forward to realize Swaraj for our country. Shri Ananthasayanam Ayyangar, the member of the Constituent Assembly, presented his opinion on village panchayats before the Assembly which is recorded as under: "But who are these republics?
They have to be brought into existence.....Therefore, I would advise that in the directives, a clause must be added, which would insist upon the various governments that may come into existence in future to establish village panchayats, give them political autonomy also economic independence in their own way to manage their own affairs."[2] It is further to be noted that Entry 5 in the list-II to the VIIth Schedule of the Constitution enables the State Legislature to make laws pertaining to local government which also include the powers to be vested on the Municipal corporations, Improvement Trusts, Authorities, Mining Settlement Authorities, District Boards and other local authorities for the purpose of village administration and the local self-governance.
The constitutional amendment in 1992-93 through the 73rd and 74th Amendment Act provided for uniformity in the structure in terms of three-tier local governments at the District (Zila Parishads- ZPs), Block (Panchayat Samitis-PS) and Village levels (Gram Panchayats-GPs). With the constitutional amendment, the panchayats are constitutionally expected to move away from their traditional role of simply executing the programs handed down to them by higher levels of government. They are on the other hand, expected to implement their own programs of economic development and social justice.
The amendments further confer power upon the States in the form of Schedule XI to enlarge the domain of panchayats and to include functions with distributional consequences. This schedule includes key functions such as agriculture, drinking water, education, irrigation, poverty alleviation, primary, secondary and adult education, roads and rural electrification and maintenance of community assets. It is further submitted by the learned senior counsel, Mr. Gopal Subramaniam that as per Article 243 G(1), the authority to prepare plans for economic development and social justice has been vested with the Gram Panchayat. Articles 243W and 243ZF have also been inserted to vest the local authority with the power to prepare plans for economic development.
The 12th Schedule inserted into the Constitution specifically lists "urban planning including town planning" as an entry on which local authorities have full power under Article 243W of the Constitution. Further, Article 243ZD was inserted into the Constitution wherein the power to prepare a draft development plan is vested with the District Planning Committee (DPC). The above mentioned provision of the Constitution is extracted hereunder:
"243ZD.
(1) There shall be constituted in every State at the district level a District Planning Committee to consolidate the plans prepared by the Panchayats and the Municipalities in the district and to prepare a draft development plan for the district as a whole.
(2) The Legislature of a State may, by law, make provision with respect to-
(a) the composition of the District Planning Committees;
(b) the manner in which the seats in such Committees shall be filled: Provided that not less than four-fifths of the total number of members of such Committee shall be elected by, and from amongst, the elected members of the Panchayat at the district level and of the Municipalities in the district in proportion to the ratio between the population of the rural areas and of the urban areas in the district; (c) the functions relating to district planning which may be assigned to such Committees;
(d) the manner in which the Chairpersons of such Committees shall be chosen.
(3) Every District Planning Committee shall, in preparing the draft development plan,-
(a) have regard to-
(i) matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;
(ii) the extent and type of available resources whether financial or otherwise;
(b) consult such institutions and organisations as the Governor may, by order, specify.
(4) The Chairperson of every District Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State." Also, under Article 243 ZF, any law inconsistent with the provisions of the Constitution will be held void. Article 243 ZF reads as under:
"243 ZF. Continuance of existing laws and municipalities.-
Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Municipalities existing immediately before the commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislative of that State."
Similar provision exists for the Gram Panchayats under Article 243 N of the Constitution. In the present case, the District Planning Committee (DPC) has been constituted under Section 3 of the Chhattisgarh Zila Yojna Samiti Act, 1995 (for short 'the Act of 1995') with an intention to democratize the town planning process to give effect to the legislative intendment. Section 7 of the Act of 1995 provides for functions of the DPC as has been prescribed by the Constitution.
The Constitution under Article 243ZD directs setting up of a DPC to consolidate the plans prepared by Panchayats and Municipalities in the Districts and to prepare a draft development plan for district as a whole and the Director of every DPC shall forward such development plans as recommended by the Committee to the government of the State.
After the insertion of part IX-A in the Constitution, development plan for a District can only be drawn by the democratically elected representative body i.e. DPC, by taking into account the factors mentioned in Clause (3)(a) (i), (ii) of Article 243ZD. As per Clause (4) of Article 243ZD, the Chairman of other DPC shall forward the development plan as recommended by the committee to the Government of the State. To support his contention further, the learned senior counsel Mr. Gopal Subramaniam, relied upon a decision of the Bombay High Court in the case of Charan v. State of Maharashtra[3] wherein it was held as under:
"22. Article 243 of the Constitution of India defines - District, Gram Sabha, Panchayat, Panchayat Area and Village. Article 243G requires legislature of State to make Law to bestow upon Panchayat powers and authority to enable them to function, as institutions of self- government. It may inter-alia provide for preparation of plans for economic development and social justice, for implementation of schemes for economic development and social justice, as may be entrusted to Panchayats, including those in relation to matters listed in Eleventh Schedule to the Constitution. Panchayat has been defined as an institution [by whatever name called], of self- government, constituted under Article 243B for Rural Areas.
Article 243ZD provides for constitution at District level in every State a Committee, known as District Planning Committee. It's purpose is to consolidate the plans prepared by the Panchayats and the Municipalities in Districts and to prepare a draft development plan for district as a whole. Article 243P defines Municipalities. Definition of District in Articles 243P and 243, as also definition of Panchayat in both the Articles is, identical. The purpose of Article 243ZD therefore, appears to have a committee to effectively amalgate together separate plans prepared by the Panchayats and Municipalities, and on its basis to prepare a draft development plan for District as a whole.
That Article may also mean that DPC can consolidate these plans and also in addition, independently prepare a draft development plan for district as a whole. As per Article 243-ZD[2], the State Legislature has to provide for composition of DPC and filling in of the seats. 4/5th of the total number of members of such committee need to be elected by and from amongst the elected members of the Panchayat at district level and of the municipalities in districts.
The law made by the State Legislature may assign to such committees function relating to district planning. Article 243-ZD [3] obliges the DPC to prepare a draft development plan having regard to the matters of common interest between the Panchayats and Municipalities, including spatial planning, sharing of water and other physical and natural resources, integrated development of infrastructure and environment conservation. For that purpose, extent and type of resources needs to be looked into and such resources may include finance or other resources.
The Legislature of State has been empowered to make law requiring the DPC to discharge functions relating to district planning as may be assigned to it. Under Sub-Article [4] the Chairperson of every District Planning Committee has to forward the development plan recommended by such committee to Government of State. Obviously, it is the draft development plan referred to in earlier part. Perusal of Eleventh Schedule shows 29 entries, which include Agriculture, Land improvement, Animal Husbandry, Social Forestry, Rural housing, Drinking water, Poverty alleviation, Education, Libraries, Market and fairs, Health and Sanitation, Family welfare, Women and Child Development etc. Entry no.13 therein deals with Roads, Culverts, Bridges,
Ferries, Waterways and other means of communication. Article 243W casts similar power and obligation upon the Municipalities. Schedule relevant therein is Twelfth Schedule and Roads and Bridges is entry no.4 in it. Article 243N specifies that any law relating to Panchayat in force, immediately before the commencement of the Constitution [73rd Amendment] Act, 1992 which is inconsistent with the provision of this part IX of the Constitution, shall continue to be in force until amended or repealed by a competent legislature or until the expiration of one year from its commencement, whichever is earlier. Thus, these new provision added to Constitution for strengthening the Panchayat Raj must operate after 1 year, if State Legislature had any inconsistent law with provision in said part and if that Legislature does not bring it in consonance with said part within said period of one year.
23. These Constitutional provision no where show the intention of Parliament to deprive the Panchayats or Municipalities of their powers or to dilute their function as institutions of self-government. On the contrary, subject to provision of Constitution, the Legislature of State has been permitted to confer necessary powers and authority upon these bodies to enable them to function effectively. Article 243ZD which makes a provision for DPC, is one such provision.
It requires the Legislature to make a law and stipulates that purpose of DPC is to consolidate the plan prepared by the Panchayats and Municipalities in Districts and to prepare a draft development plan for District as a whole. The provision noted by us above show relevance of matters of common interest, as specified in Article 243 ZD [3][a] for said purpose. A Panchayat or Municipality can function only in area over which it has jurisdiction. Schemes prepared by it, therefore may not have any extra territorial application though possibility of its such impact or extending its benefit to outsiders cannot be ruled out.
The water reservoir or other physical/natural resources, in jurisdiction of such institution of local self government can be conveniently exploited for larger area of two or more Panchayats or then Panchayats and municipalities at same cost or by saving public revenue. To facilitate such exploitation, the Parliament has thought it fit to create a District Planning Committee [DPC] which can consolidate the otherwise separate plans prepared by the Panchayats and Municipalities and prepare a draft development plan for entire District as a whole. It is, therefore, obvious that when such consolidation of development plans which are otherwise separate, becomes necessary or is found essential in larger public interest, DPC has been constituted to undertake that exercise. It has been given power to prepare a draft development plan for district as a whole also.
Thus idea seems to be maximum utilization of resources at minimum costs by larger number of people spread over under different local bodies in a district. Article 243ZD does not confer any executable status on such plans and the same need to be sent to Government of the State. Thus, if development is restricted to area of only one authority and has no extraterritorial potential, the right of concerned local authority to proceed with it, is normally not prejudiced in any way."
(emphasis supplied by this Court)
As has been mentioned supra, the Respondent No.2-RDA was constituted under Section 38 of the Act of 1973. The Town Development Scheme framed by Respondent No. 2-RDA, however, has to be read in the light of Section 50(4) which provides for the approval of the Town Development Scheme by appropriate authority which reads as under:
"(4) The Town and Country Development Authority shall consider all the objections and suggestions as may be received within the period specified in the notice under sub section (3) and shall, after giving a reasonable opportunity to such persons affected thereby as are desirous of being heard, or after considering the report of the committee constituted under Sub section (5) approve the draft scheme shall be deemed to have lapsed.]"
Further, an amendment was made for the State of Chhattisgarh only, with respect to constitution of committee for evaluating reconstitution of plots for the purpose of the Town Development Scheme. The amendment came into force w.e.f. 6.9.2010 which reads as under: "[(5) Where the town development scheme relates to reconstitution of plots, the Town and Country Development Authority shall, notwithstanding anything contained in Sub- section (4), constitute a committee consisting of the Chief Executive Officer of the said Authority and to other members of whom one shall be representative of the District Collector, not below the rank of Deputy Collector and the other shall be an officer of the Town and Country Planning Department not below the rank of Deputy Director nominated by the Director of Town & Country Planning for the purpose of hearing objection and suggestions received under sub- section (3).]"
(emphasis supplied by the Court)
Therefore, in the light of the provisions mentioned above if read in harmonious construction, the Chief Executive Officer of Respondent No. 2- RDA is not permitted to unilaterally prepare a development scheme resulting reconstitution of land without taking into consideration the opinion and suggestions of the democratically elected bodies such as the District Planning Committee and Officer of the Town and Country Planning Department, as mentioned in the Act of 1973. However, in the present case, as per the evidence on record put before us, the Chief Executive Officer of Respondent No. 2- RDA, formulated the Town Development Scheme without taking the opinion of the local committees which are constitutionally authorized to make suggestions in the matter of Town Development Scheme under the amended provisions of Section 50(5) of the Act of 1973.
In addition to this, it has been contended by the learned senior counsel on behalf of the appellants that the present master plan, of which the development authority wants to implement, has been prepared by the Chief Executive Officer without regard to the District Planning Committee's power under the constitutional provisions which provisions are incorporated in the State Act. Therefore, it has been argued by the learned senior counsel that the revised master plan itself is opposed to the constitutional and statutory provisions and therefore, it is a nullity in the eyes of law. Following the same, the KVTDS framed and purported in compliance with the Raipur Master Plan (Revised) 2021, is also nullity in the eyes of law.
The above said argument is raised by the learned senior counsel on behalf of the appellants drawing our attention to the case of Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd.[4] which will be discussed in the appropriate place of this judgment. It was held in that case that both development plan and master plan are one and the same thing described by different names in different states. It has been admitted by the Respondent No. 2- RDA that they have prepared the Master Plan (Revised) 2021. We are of the opinion that the Master Plan so prepared is in clear contravention of Section 14 of the Act of 1973 read along with Section 17 of the same Act. Section 17 of the Act mandates the requirement of taking into consideration the Annual Development Plan of the District prepared under the Madhya Pradesh Zila Yojana Samiti Adhiniyam 1995. However, in the case in hand, there is no evidence to show that the Respondent No. 2- RDA had taken into consideration any report prepared under the Act of 1995.
On the other hand, there is correspondence on record to prove that the Respondent No. 2- RDA, on its own, without taking into consideration any report, revised the Master Plan 2021 to suit it to the requirement of the KVTDS. Therefore, we are of the opinion that the Master Plan (Revised) 2021 requires reconsideration and should be prepared in accordance with the legal procedure. Next, it is relevant for us to examine Entry 5 of List II of the Seventh Schedule to the Constitution which empowers the local government to elect members to municipal corporations, improvement trusts, District boards, Mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
Also, under Entries 1 and 3 of Twelfth Schedule, Urban planning includes town planning and planning for economic and social development respectively. In the light of the above entries, it is contended by the learned senior counsel on behalf of the appellants, Mr. Gopal Subramaniam and Mr. Huzefa Ahmadi that the Act of 1973 in the present case has been read by the respondents without taking into account the subsequent amendments made to the Act in adherence to the constitutional amendment provision. As a consequence, the power vested on the Director of the Planning Authority has been read by the respondent No.2- RDA in isolation to the subsequent amendments made in the Act thereby violating the present constitutional scheme of self governance.
It was further argued by the learned senior counsel on behalf of the appellants that under Article 243 N and Article 243 ZF, the Act of 1973 was required to be amended to make it adherent to the provisions of 73rd and 74th Constitutional amendments. The learned senior counsel further argued that disobedience to the constitutional mandate amounts to breaking down of the federal polity leading to constitutional impasse. The amended provisions of the Act of 1973 clearly provides for a role of local authorities in the planning process. The same cannot be abrogated. It is also contended that the role and functions of the District Planning Committee were notified once Chhattisgarh was notified out of Madhya Pradesh.
This was further supplemented by the District Planning Committee. Therefore, in the presence of a notified District Planning Committee, it was argued by the learned senior counsel, that planning for districts as a conglomeration of panchayats cannot be done by Respondent No. 2-RDA. We are in agreement with the legal contentions raised by the learned senior counsel on behalf of the appellants. Once the Constitution provides for democratically elected bodies for local self-government, a nominated body like Respondent No. 2- RDA cannot assume the role of an elected body and consequently usurp the power of the local authority in framing development schemes and subsequently altering the size and use of land in the KVTDS. On the other hand, it was argued by Mrs. Pinky Anand and Mr. Prashant Desai, the learned senior counsel on behalf of the respondents that most of the submissions made by the learned senior counsel of the appellants, were not raised before the courts below and have been raised for the first time before this Court on the ground of violation of the 73rd and 74th amendment of the Constitution.
Further, it was argued that there has been full compliance of 73rd and 74th Constitutional Amendment and the committee as contemplated by the said amendment, is also responsible for the modification or revision of the development plan under Section 23 read with Sections 14 to 18 of the Act of 1973. We are not able to agree with the contention of the respondent that a ground raised before this Court for the first time is not maintainable because it has been raised before us for the first time and has not been raised before the courts below.
Though the said legal plea is raised for the first time in these proceedings, the learned senior counsel on behalf of the appellants placed reliance upon the judgment of the Privy Council In Connecticut Fire Insurance Co. v. Kavanagh[5] wherein, Lord Watson has observed as under: "when a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea."
The aforesaid views of the Court of Appeal have been relied upon by this Court in Gurcharan Singh v. Kamla Singh[6]. The above mentioned aspect of Article 243ZD, although is being raised before this Court for the first time, we are of the view that the same is based on admitted facts. The legal submission made on behalf of the appellants under Article 243ZD of the Constitution has to be accepted by this Court in view of the similar view that a new ground raising a pure question of law can be raised at any stage before this Court as laid down by this Court in V.L.S. Finance Limited v. Union of India & Ors.[7], which reads thus :-
"7. Mr Shankaranarayanan has taken an extreme stand before this Court and contends that the Company Law Board has no jurisdiction to compound an offence punishable under Section 211(7) of the Act as the punishment provided is imprisonment also. Mr Bhushan, however, submits that imprisonment is not a mandatory punishment under Section 211(7) of the Act and, hence, the Company Law Board has the authority to compound the same. He also points out that this submission was not at all advanced before the Company Law Board and, therefore, the appellant cannot be permitted to raise this question for the first time before this Court.
We are not in agreement with Mr Bhushan in regard to his plea that this question cannot be gone into by this Court at the first instance. In our opinion, in a case in which the facts pleaded give rise to a pure question of law going to the root of the matter, this Court possesses discretion to go into that. The position would have been different had the appellant for the first time prayed before this Court for adjudication on an issue of fact and then to apply the law and hold that the Company Law Board had no jurisdiction to compound the offence."
Further, this Court in Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors.[8] held as under :-
"26. Respondent 1 raised the plea of non-receipt of the letter of allotment first time before the High Court. Even if it is assumed that it is correct, the question does arise as to whether such a new plea on facts could be agitated before the writ court. It is settled legal proposition that pure question of law can be raised at any time of the proceedings but a question of fact which requires investigation and inquiry, and for which no factual foundation has been laid by a party before the court or tribunal below, cannot be allowed to be agitated in the writ petition.
If the writ court for some compelling circumstances desires to entertain a new factual plea the court must give due opportunity to the opposite party to controvert the same and adduce the evidence to substantiate its pleadings. Thus, it is not permissible for the High Court to consider a new case on facts or mixed question of fact and law which was not the case of the parties before the court or tribunal below. [Vide State of U.P. v. Dr. Anupam Gupta, Ram Kumar Agarwal v. Thawar Das, Vasantha Viswanathan v. V.K. Elayalwar, Anup Kumar Kundu v. Sudip Charan Chakraborty, Tirupati Jute Industries (P) Ltd. v. State of W.B. and Sanghvi Reconditioners (P) Ltd. v. Union of India.]
27. In the instant case, as the new plea on fact has been raised first time before the High Court it could not have been entertained, particularly in the manner the High Court has dealt with as no opportunity of controverting the same had been given to the appellants. More so, the High Court, instead of examining the case in the correct perspective, proceeded in haste, which itself amounts to arbitrariness. (Vide Fuljit Kaur v. State of Punjab.)" In National Textile Corporation Ltd. v. Naresh Kumar Badrikumar Jagad[9], it was held as under:-
"19. There is no quarrel to the settled legal proposition that a new plea cannot be taken in respect of any factual controversy whatsoever, however, a new ground raising a pure legal issue for which no inquiry/proof is required can be permitted to be raised by the court at any stage of the proceedings. [See Sanghvi Reconditioners (P) Ltd. v. Union of India and Greater Mohali Area Development Authority v. Manju Jain.]" Further, this Court has frowned upon the practice of the Government to raise technical pleas to defeat the rights of the citizens in Madras Port Trust v. Hymanshu International[10] wherein it was opined that it is about time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens.
Para 2 from the said case reads thus :-
"2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by Section 110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens.
Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the. purpose of resisting such a claim has become unavailable. Here, it js obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in the exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appellant based on Section 110 of the Madras Port Trust Act (II of 1905)."
We are also not inclined to accept the contention urged by the learned senior counsel on behalf of the respondents that the committee is authorised to modify or alter the Development Plan under Sections 14 and 17 read with Section 23 of the Act of 1973. As has been mentioned earlier, section 14 of the Act confers the power upon the Director of Town and Country Planning appointed under the Act, to prepare development plans. However, this power conferred upon the Director has to be read along with Section 17 of the Act, which mandates the Director to take into consideration, any draft Five Year Plan and Annual Development Plan of a district prepared under the Madhya Pradesh Zila Yojana Samiti Adhiniyam, 1995. In the case in hand, there is no evidence to prove that the Director had taken into account any report made under the 1995 Adhiniyam. On the other hand, the evidence on record produced before us clearly shows that the Development Plan has been altered to suit the requisites of KVTDS.
This action by the Director is impermissible and unlawful. Therefore, we are inclined to accept the contention raised by the learned senior counsel on behalf of the appellants and hold that KVTDS, having formulated solely by the Respondent No. 2- RDA without taking into consideration the reports of the local authority, violates the Act of 1973 as well as Part IX and IX-A of the Constitution. We are inclined to agree with the fact that the Development Plan and its modification has not been made in accordance with the constitutional mandate and the Act of 1973. It is further contended by the learned senior counsel on behalf of the appellants that in the backdrop of the aforesaid Constitutional morality and the fact situation of the cases in hand, the decision of the Respondent No.2- RDA to add 1900 acres of land at different stages, and also change of land use, is sullied by bias of Sri S.S. Bajaj, who acted in different capacities in relation to the same transaction wherein each authority was expected to apply its mind independently of each other.
The said contention by the learned senior counsel on behalf of the appellants is well founded and the same must be accepted by this Court. There is strong substance and evidence in the submissions of the learned senior counsel of the appellants. As per the evidence produced before us, on 20.07.2009, one Sri S.S. Bajaj, served as the CEO of the Respondent No. 2- RDA proposed addition of 1900 acres of land in KVTDS. About 20 days later, on 10.08.2009, the same Mr. S.S. Bajaj was serving as Special Secretary, Department of Housing & Environment, Chhattisgarh Government, which is Respondent No.1 before us has approved the said addition of 1900 acres of land to the scheme which is a clear case of bias.
This Court has on many occasions, mentioned the bare minimum requirement of trust and fairness by the state that should ensure its people in running of the government. In the case of Mohinder Singh Gill v. Chief Election Commissioner[11], this Court held as under: "3. The moral may be stated with telling terseness in the words of William Pitt: 'Where laws end, tyranny begins'. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics or Power best expressed by Benjamin Dizreeli: I repeat...that all power is a trust-that we are accountable for its exercise-that, from the people and for the people, all springs, and all must exist." (Vivien Grey, BK. VI. Ch. 7) Aside from these is yet another, bearings on the play of natural justice, its nuances, non-applications, contours, colour and content.
Natural Justice is no mystic testament of judge made juristic but the pragmatic, yet principled, requirement of fairplay in action as the norm of a civilised justice-system and minimum of good government-crystallised clearly in our jurisprudence by a catena of cases here and elsewhere...." It has also been held by this Court that principles of natural justice are applicable to administrative enquiries as well, and that no person can be a judge in his own cause. It was held in the case of A.K Kraipak & Ors. v. Union of India & Ors.[12]: "20.The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years.
In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon there- after a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice.
The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries." For the above reason alone as rightly contended by the learned senior counsel on behalf of the appellants, the enhancement of land in the KVTDS is vitiated due to lack of objectivity and non-application of mind.
The initial intention to prepare the KVTDS of 416.93 acres was published in the Gazette on 05.06.2009. Thereafter, on 14.07.2009, Sri S.S. Bajaj serving as CEO of Respondent No. 2- RDA presided over the meeting of the Board of Directors of the RDA wherein the decision to add 1900 acres of land of villages including Dumartarai Village to KVTDS was taken. Pursuant to the said Board Resolution, the CEO-RDA sent a proposal dated 20.07.2009 to the State Government seeking addition of an area of 1900 acres to the KVTDS. It is clear from the minutes of the Board meeting on 14.7.2009 as well as the said proposal dated 20.7.2009 that no prior survey or assessment of the need for addition of land to the area of the scheme was undertaken by the RDA.
As rightly pointed out by the learned senior counsel on behalf of the appellants, a proposal for the Town Development Scheme required to be submitted to the State Government in accordance with the Government Order dated 18.11.1999 and it is the obligation of the Respondent No. 1- State Government to independently consider such a proposal and exercise its mind as to whether the same is proper and if it raises concerns of public interest when such inclusion of the land use is made under the Town Development Scheme. Independently, it is evident from the fact that on 20th July, 2009, a proposal was sent by the Respondent No. 2- RDA to the Respondent No. 1- State Government and the same was approved by Sri S.S. Bajaj, who at that point of time was acting as Special Secretary, Department of Housing and Environment, Government of Chhattisgarh who had also proposed the addition of 1900 acres to be included in the scheme when he was acting as the CEO of the RDA.
It is evident from the evidence put on record before us that the same person was acting in two different capacities who proposed as well as accepted the plan of addition of land at subsequent stage. The said proposal was accepted within a span of 20 days only i.e. on 10.08.2009. In view of the aforesaid undisputed facts as pointed out by the learned senior counsel on behalf of the appellants, the aforesaid decision taken by Sri S.S. Bajaj as Special Secretary, Department of Housing and Environment, Government of Chhattisgarh (Respondent No. 1) in approving the proposal of RDA to include large extent of land to the KVTDS is vitiated action in law as the same is tainted with bias and non-application of mind on the part of the State Government-Respondent No.1 with regard to the proposal of the Respondent No. 2- RDA to include large extent of land in the scheme.
The Respondent No. 2- RDA released an affidavit dated 23.11.2010 on the ground of challenge by stating that: "all decisions and actions have been taken by the Authority and not by any individual. Even otherwise the communications done by the officer for the answering respondent was not his individual communication but was on behalf of the Committee as well as Board of Directors and therefore could not be said to have in his individual capacity. Likewise, whole corresponding on behalf of the State Government and on behalf of His Excellency the Governor and in his individual capacity."
However on the basis of the evidence on record produced before us, we are unable to concede with the affidavits so released by Respondent No. 2- RDA since the evidence of bias and self-interest is evident. This Court in one occasion, in the case of The State of Punjab and Anr. v. Gurdial Singh and Ors.[13] opined with respect to mala fide in jurisprudence of power, as under :- "9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions is the attainment of ends beyond the sanctioned purposes" of power by simulation or pretension of gaining a legitimate goal.
If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in Law when he stated: "I repeat that all power is a trust that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist".Fraud on power voids the order if it is not exercised bona fide for the end designed.
Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malices-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action mala fides or fraud on power, vitiates the acquisition or other official act." In the case in hand, we are convinced that the action taken by Respondent No. 2- RDA as mentioned in the affidavit issued by it, meets different ends than the reason for which power had been assigned to it. It is contended by the learned senior counsel on behalf of the appellants that there was no "Committee" in place.
We are in agreement with this contention raised by the learned senior counsel. As per the Order issued by the Revenue Branch of Respondent No. 2- RDA, the said Committee which was to review the scheme under Section 50(5) of the Act of 1973, was constituted only on or about 30.11.2009 but the decision to further extend the land size into the Town Development Scheme can be traced as early as 14.7.2009 with the report of Board Meeting No. 03/09.
Apart from the said contravention made by the Respondent No. 2- RDA, its proposal to have township of 2300 acres of land was examined by a Committee constituted under Section 50(5) of the Act of 1973, which prepared its report dated 8.6.2010. The same was accepted by Shri S.S. Bajaj, Chairman of Respondent No. 2-RDA in the Board meeting held on 21.6.2010 and 22.6.2010. Therefore, the entire exercise made by RDA under Section 50 (5) of the Act has been rendered otiose and an empty formality in the light of the decisions of this Court mentioned supra and in view of the aforesaid undisputed facts in relation to the action taken by the Respondent No. 1- State Government, to give permission only after applying its mind independently on the materials submitted by the Respondent No. 2-RDA which is not done by the State Government and therefore, the power exercised by the State Government in sanctioning the proposed scheme of Respondent No. 2- RDA has rendered otiose. It is a well established principle in the Indian jurisprudence that no one can be a judge in his own case. The fact has been established by various decisions of this Court. It was held in the case of M/s. J. Mohapatra and Co. and Anr. v. State of Orissa & Anr.[14] as under:
"12. There is, however, an exception to the above rule that no men shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which ha has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down.
Thus, in The Judges v. Attorney-General for Saskatchewan 53 TLR 464, the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act ex necessitate. The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters. The High Court, however, wrongly applied this doctrine to the author-members of the Assessment Sub- Committee.
It is true, the members of this Sub-Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director, Higher Education, etc. There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such nonofficial author-members from resigning from the committee on the ground of their interest in the matter."
Therefore, in the light of the reasons mentioned by us above, we are of the considered view that there is total lack of application of mind by the Respondent No. 1- State Government in not taking into consideration all the relevant aspects while declaring the KVTDS as well as the finance Scheme proposed by the Respondent No. 2- RDA. The Respondent No. 1- State Government could not have sanctioned the aforesaid Scheme as the same is in contravention to the procedure laid down comprehensively in Section 50 of the Act of 1973. The initial approval of the Scheme was on 25.1.2008 and approval to add 1900 acres of land to KVTDS dated 10.08.2009 was granted by the State Government without any application of mind and objective consideration by the Respondent No. 1-State Government which fact is expressly clear as the said proposed scheme was neither in accordance with the Development Plan nor did any Zonal Plan which existed at the material point of time.
Therefore, for the reasons mentioned by us, we answer this point in favour of the appellants. Answer to Point No. 2 It is contended by the learned senior counsel on behalf of the appellants that the Town Development Scheme KVTDS prepared in the case in hand, is in contravention to the provisions laid down in Section 50 of the Act. Section 50(1) of the Act of 1973 reads thus: "Preparation of Town Development Schemes- The Town and Country Development Authority may, at any time, declare its intention to prepare a Town Development Scheme:
[Provided that no such declaration of intent shall be made without the prior approval of the State Government]. ........."
Reliance has been placed upon the phrase "at any time" in Section 50(1) of the Act of 1973 by the learned senior counsel on behalf of the appellants contending that it is not a source of arbitrary and unbridled power/discretion to exercise its power arbitrarily but requires study, survey and assessment of need/requirement of plots for the residents of the area before the intention of the RDA can be declared by the Town and Country Development Authority. In this regard, the learned senior counsel on behalf of the appellants have rightly placed reliance upon the judgment of this Court in the case of Chairman, Indore Vikas Pradhikaran (supra), wherein it was held as under:
"80. Section 50(1) of the Act provide for declaration of this intention to prepare town development scheme "at any time". The words "at any time" do not confer upon any statutory authority an unfettered discretion to frame the town development scheme whenever it so pleases. The words "at any time" are not charter for the exercise of an arbitrary decision as and when a scheme has to be framed. The words "at any time" have no exemption from all forms of limitation for unexplained and undue delay. Such an interpretation would not only result in the destruction of citizens' rights but would also go contrary to the entire context in which the power has been given to the authority.
81. The words "at any time" have to be interpreted in the context in which they are used. Since a town development scheme in the context of the Act is intended to implement the development plan, the declaration of intention to prepare a scheme can only be in the context of a development plan. The starting point of the declaration of the intention has to be upon the notification of development plan and the outer limit for the authority to frame such a scheme upon lapsing of the plan. That is the plausible interpretation of the words "at any time" used in Section 50(1) of the Act. (See State of H.P. v. Rajkumar Brijender Singh." The phrase "at any time" under Section 50(1) of the Act is not a charter for the exercise of an arbitrary decision as and when a scheme has to be framed.
The words 'At any time" have no exemption from all forms of limitation for unexplained and undue delay. Such an interpretation would not only result in destruction of citizens rights but would also go contrary to the entire context in which the power has been conferred upon the authority. Also, a proviso added to Section 50(1) of the Act in the year 2012 states that a Development Authority can declare its intention of preparing Town Development Scheme only with the prior approval of the State Government. Section 49 of the Act of 1973 provides for the matters for which a Town Development Scheme can be prepared. Section 49 of the Act reads thus:
"49. Town Development Scheme-
A Town Development Scheme may make provision for any of the following matters:-
(i) acquisition, development and sale or leasing of land for the purpose of town expansion;
(ii) acquisition, relaying out of, rebuilding, or relocating areas which have been badly laid out or which has developed or degenerated into a slum;
(iii) acquisition and development of land for public purposes such as housing development, development of shopping centres, cultural centres, administrative centres;
(iv) acquisition and development of areas for commercial and industrial purposes;
(v) undertaking of such building or construction work as may be necessary to provide housing, shopping, commercial and other facilities;
(vi) acquisition of land and its development for the purpose of laying out or remodelling of road and street patterns;
(vii) acquisition and development of land for playgrounds, parks, recreation centres and stadia;
(viii) re-construction of plots for the purpose of buildings, roads, drains, sewage lines and other similar amenities;
(ix) any other work of a nature such as would bring about environmental improvements which may be taken up by the authority with prior approval of the State Government."
Section 50(1) of the Act of 1973 vests the jurisdiction on the Town and Country Development Authority to declare its intention for preparing a Town Development Scheme, which in this case is the Respondent No. 2-RDA. Section 49 provides that a Town Development Scheme can be proposed for the purpose of town expansion, for rebuilding and regenerating areas which have degenerated into slums, acquire and development land for public, commercial and industrial purpose and also for other work which would bring about environmental improvement which shall also be taken up with the prior approval of the State Government.
It may be noted that Respondent No. 2- RDA has not put any document on record, either before the High Court or this Court which shows any assessment of "need" or "requirement" for town expansion conducted by it prior to proposing the KVTDS. Even though KVTDS has allegedly been introduced for a population of 16,000 per 40 Hect. of land there is no document /survey report on record to show how the said figure was arrived at by the RDA. The requirement of such assessment was all the more necessary because already a new capital called 'Naya Raipur' has been built near Raipur. Further, frequent changes in the extent of land acquired for the KVTDS by the RDA is a very strong indicator of the fact that there is no rationale behind the proposal of the said Scheme.
The Respondent No.2- RDA had proposed the area of KVTDS to be 900 acres on 31.7.2006, 1100 acres on 14.11.2006, 394 acres on 3.6.2008 and eventually 2300 acres on 20.7.2009, without assigning reasons for coming to such conclusions in expanding the area to the scheme. In view of the above, there is clear non-application of mind on the part of the State Government behind the increase in the sanctioned area of KVTDS from 416.93 acres of land to 2300 acres of land. In fact, in the letter dated 27.8.2008 to the Joint Director, Town and Country Planning Authority, it has been specifically noted that physical survey of the area must be carried out.
It is contended by the learned senior counsel on behalf of the appellants that even the letter dated 20.7.2009 addressed by Respondent No. 2- RDA to the Respondent No. 1- State Government admits that survey of the area is being carried out in respect of previous 416.93 acres of land. In the instant case, the proposal to have KVTDS as well as sanction for the same by the Respondent No. 1- State Government, is not preceded by a survey of the area, which renders the exercise of its power of ex post facto survey into an empty formality which action of it is wholly unsustainable in law.
Further, the purpose of the KVTDS as has been cited by the Respondent No. 2- RDA, is only with the purpose of curbing illegal plotting which can be served by regulating development work by exercise of statutory power vested in the Respondent No. 2- RDA under the Act of 1973. On the pretext of regulating development or stopping illegal construction/ plotting, the Respondent No.2- RDA cannot take away the land of the appellants in exercise of the powe
