Lakhanlal And Others v. Town Improvement Trust

K. L. Pandby, J.

This order shall govern Miscellaneous Petition No. 113 of 1967 also. Both these petitions are directed against-

(i) Land Acquisition and Development Scheme No. 2-B framed by the Jabalpur Improvement Trust (respondent No. 1) and sanctioned and announced by the State Government under the provisions of the M. P. Town Improvement Trusts Act, 1960 (hereinafter called the Act);

(ii) sanction accorded to that Scheme by the State Government and announced by a notification dated August 16, 1965 issued under section 52 (1) of the Act and further sanction given by an order dated January 31, 1966 passed under section 70 of the Act to acquisition of the land needed for the Scheme; and

(iii) all orders passed and notices issued thereafter in regard to the Scheme, acquisition of land therefor and delivery of possession of such land. The petitioners have also asked for a writ of mandamus to restrain the respondents from giving effect to this Scheme No. 2-B.

The material facts, as far as they are not in dispute, may be shortly stated. The respondent No. 1 framed Land Acquisition and Development Scheme No. 2-B for development of the land to be acquired therefor in order to provide plots of land for building residential accommodation. The Scheme provides for acquisition of 102.62 acres of land, including 56.91 acres out of 69.14 of village Purwa belonging to the petitioners in this case and of 0.71 acre of land of the same village belonging to the petitioner in the sister case, all situated within the limits of the Municipal Corporation, Jabalpur. The notification relating to the Scheme was duly published in the M. P. Rajpatra and also in a local paper as required by section 46 (2) of the Act. Following this, and in the usual course, the State Government issued the impugned notification under section 52 (1) of the Act and also subsequently passed the impugned order under section 70 of the Act. Notices were then issued under section 71 (3) of the Act requiring the petitioners to deliver possession of the lands. After taking possession, the respondent No. 1 offered certain amounts as compensation to the petitioners in the two cases but they declined to accept those amounts. Even so, for determining the dispute relating to amount of compensation, a tribunal was not constituted as required by section 73 of the Act.

The petitioners in the two cases have challenged the Land Acquisition and Development Scheme No. 2-B inter alia on the following grounds;

(i) The purpose for which lands have been acquired in this case is not a public purpose within the meaning of Article 31(2) of the Constitution.

(ii) Since the Scheme framed was a "Land Acquisition and Development Scheme" covered by section 37 of the Act, it could not be utilised for providing residential accommodation.

(iii) The provisions in the Act relating to payment of compensation are not like those in the Land Acquisition Act, 1894.

(iv) Proceedings for acquisition and possession are bad because no compensation was paid, no tribunal was appointed under section 73 of the Act even rules under section 79 of the Act have not yet been framed.

Other grounds raised relate to matters of procedure. The petitioners claimed that the notice under section 46 of the Act did not give the prescribed particulars, that no notice was given to the Local Authority and that, when applications were made to the respondent No. I, it failed to supply copies of all relevant documents relating to the Scheme. Further, no notice as contemplated by section 48 (1) of the Act was given to the petitioners who were thus not afforded a reasonable opportunity of being heard as contemplated by section 50 of the Act. Finally, before the State Government accorded sanction for requisition of the land, individual notices under section 68 (1) of the Act were not given, no enquiry was made by the State Government and no opportunity was afforded to the petitioners to make any representation.

The respondents Nos. 1 and 2 and the State Government (respondent No. 3) filed separate returns, traversed all adverse allegations made by the petitioners in the two cases and contested their claim to the belief asked for by them. They further stated that the Scheme was prepared for the purpose of relieving congestion in the city and it envisaged making available building sites to city dwellers living in crowded localities and desiring to shift to open areas in the periphery of the inhabited localities of the city. In that Scheme, certain special features of other types of schemes enumerated in section 31 of the Act were also incorporated.

Having heard the counsel, we have formed the opinion that these petitions must be dismissed. So far as the alleged defects in procedure are concerned, the petitioners are no longer entitled to rely on them to assail either the framing of the Scheme or the sanction accorded thereto by the State Government. We examined the question in some detail in paragraphs 6, 7, 8 and 9 of the order passed by us today in Bent Prasad and others v. The Jabalpur Improvement Trust and others : 1970 M P L J 292 (M. P. No. 316/66, D/- 11-1-1970.). For reasons given in the aforesaid paragraphs 6 and 7, we hold that, after publication of the notification under section 52 (1) of the Act, the anterior defects in procedure, if any, could not be considered as affecting the validity of the procedure adopted for framing and sanctioning the Scheme. Further, for reasons - given in paragraphs 8 and 9 of that order, we are unable to accept the contention that the proceedings are affected in any way by the alleged failure to serve individual notices under section 68 (1) of the Act or the failure of the State Government to make any enquiry before according sanction to requisition of the land needed for the Scheme.

We have next to consider whether the purpose for which the Scheme was prepared, namely, relieving congestion in the city, is a public purpose within the meaning of Article 31(2) of the Constitution. The relevant facts would appear from the following extracts:

There is a serious congestion in the town of Jabalpur. The price of land even though under-developed is very high and the people are reluctant to pay the high price. They are unable to shift from the crowded localities, many of which not only lack in modern amenities like good water supply, drainage, open area etc and are at present in most unsanitary condition. The necessity for developing some open areas within the town perimeter with a view to provide plots at reasonable rates to persons living in such areas and others desirous to live in a well developed and open area has been felt for a long time. The State Government had sometime ago proposed to acquire some lands for extension of building areas in the town..........

The Scheme provides for 402 plots varying in size from 50 x 70 to 80 % 100 for construction of houses covering a total area of 16,23,610 sq. feet (37.27 acres approximately) out of a total area of 102.62 acres covered by the Scheme. The Scheme provides for all amenities viz. roads, water supply, sewerage, street-lighting, parks, read-side trees etc.

The total plot area of the developed land which would be available for sale works out to 16,23,610 sq. feet. It is proposed to sell these plots on no loss no profit basis.

Jabalpur is one of the two largest cities of this State and we consider that relieving congestion in crowded and squalid localities of the growing city is a public purpose. It has also been so held in a number of cases. We may mention only Padayachi v. State of Madras : AIR 1952 Mad. 756 ; Bhagwat Dayal v. Union of India : AIR 1959 P&H 544 and Moosa v. State AIR I960 Ker M. In Shyam Swamp v. State of Uttar Pradesh : AI R 1963 All. 426, a scheme called Mahanagar Scheme designed to meet the growing needs of the city of Lucknow and its increasing population and providing for building sites, construction of roads and sewers and other like amenities on modern lines on a non-commercial basis, which was sponsored, executed and directed by a public body like the Municipal Board was held to be a public purpose. In this view, therefore, the contention that the acquisition of land required for Scheme No. 2-6 is unsupportable by a public purpose must be rejected.

Another ground on which the Scheme has been attacked is that, as a purely development scheme under section 37 of the Act, the respondent No. 1 could not undertake the work of providing building sites. This contention is no doubt well founded but, as we pointed out in paragraph 12 of our order passed today in the sister case, it is permissible to combine several types of schemes or certain special features thereof in one composite scheme. In this connection, we may refer to the Street Scheme described in section 35 which is undertaken for the purpose of providing building sites and which authorises acquisition of any land adjoining any street, thoroughfare or open space to be formed wider the scheme. In our opinion, the Scheme in this case is a composite type of Scheme covered by sections 35, 37 and 39 of the Act. We have only to add that the Town Expansion Scheme mentioned in section 39 is not required by statute to conform to any specified pattern and, therefore, any special feature not to be found in the types specified in sections 32 to 38 of the Act would be covered by it. In this view, even this ground must fail.

Yet another ground is that the provisions relating to payment of compensation are unlike those of the Land Acquisition Act, 1894. So far as assessment of compensation is concerned, the provisions contained in section 77 of the Act are similar to those in sections 23 and 24 of the Land Acquisition Act. The only difference pointed out to us is about the absence of any provision for payment of interest similar to section 34 of the Land Acquisition Act, We consider that there is nothing in the Act to prevent the Tribunal from awarding interest on similar consideration. What is more, here the decision of the Tribunal that determines disputes relating to compensation is enforceable as a decree, as provided by section 78 (3) of the Act. There is, therefore, no discrimination such as would attract the principle laid down in Vairavelu v. Special Deputy Collector : AIR 1965 S C 1017.

The last ground relates to payment of compensation and appointment of a Tribunal for determining disputes relating thereto. As we have already indicated, compensation was offered to the petitioners, but they declined to accept the amounts which they regarded as inadequate. The respondent No. 1 has already moved the State Government for appointing a Tribunal under section 73 (5) of the Act. If the State Government is remiss in performance of its statutory duty, it is open to any aggrieved person to take appropriate action to oblige it so to do. In regard to the rules for conduct of business by such Tribunal, the question might arise if such rules do not exist even after appointment of the Tribunal. This ground is also thus of no assistance to the petitioners.

In conclusion, we may notice that where land included in a Town Expansion Scheme mentioned in section 39 of the Act is in respect of an area, wholly or in part within the limits of the town, previous sanction of the State Government is required. The relevant provision is contained in sub-section (2) of that section which reads :

(2) Such scheme shall ordinarily be framed in respect of an area wholly without the limits of the town but may in special circumstances and with the previous sanction of the State Government be framed in respect of an area which lies wholly within or partly within and partly without the said limit.

As we have indicated earlier, the area covered by the Scheme No. 2-B is within the limits of Jabalpur Corporation. It is also not claimed that any previous sanction was taken for framing the Scheme. It was argued before us that, in the absence of previous sanction, the respondent No. 1 had no jurisdiction to frame the Scheme and it should be struck down on that ground. We are, however, unable to accept this contention also. We have already shown that the Scheme is essentially a combination of a street scheme and a development scheme described in sections 35 and 37 of the Act. Only certain features not covered by those two schemes would thus fall to be governed by section 39 of the Act. In our view, previous sanction is not necessary when the scheme as a whole is not essentially a town expansion scheme within the meaning of section 39 of the Act. Even otherwise, we consider that this requirement of obtaining previous sanction is, in the circumstances, not mandatory. It will be seen that the language employed in sub-section (2) does not indicate that this was intended to be mandatory, though we agree that use of a particular language alone is not decisive of the matter. It may, however, be noted that the Act does not provide for nullification of the Scheme as a consequence for noncompliance with the provision relating to previous sanction. In such a case, the object, purpose and scope of the enactment should be considered in the light of the provisions of the Act taken as a whole and so it should be ascertained whether the requirement is mandatory or directory: Banarsi Das v. Cane Commissioner, U. P. : AI R 1963 S C 1417 at p. 1424. In this case, it is clear from the provisions of the Act that after previous sanction of the State Government, the Scheme has to be published, objections invited and decisions taken thereon and then the Scheme has to be submitted to the State Government once again for fresh sanction under section 51 of the Act. Therefore, the object of the previous sanction can only be to enable the State Government to decide whether such a scheme is necessary for the town or city concerned. Even after the State Government took a provisional decision, it is open to the persons affected to raise this objection for consideration of the State Government which may well decline to accord on this ground the final sanction requisite under section 51 of the Act. This we think indicates that this requirement relating to previous sanction is directory only. A somewhat similar view was taken in Municipal Committee, Khandwa v. Radkakisan : A I R 1930 Nag. 157. Further, even if the language employed in an enactment is indicative of the provision being mandatory in character, if its neglect would work serious general inconvenience or injustice to those who have no control over its performance and would not on the other hand promote the object of the Act, it would be regarded as directory only: Montreal Street Railway Company v. Normandin AI R 1917 P C 142; State of Uttar Pradesh v. Manbodhan Lal : AI R 1957 S C 912 and Banarsi Das v. Cane Commissioner, U. P. In this case, after the Scheme was finally sanctioned, several persons have taken building sites and raised costly structures and, if the Scheme is now nullified on this ground, it would seriously prejudice them. Finally, as we have indicated in paragraphs 6 and 7 of our order passed in the sister case, section 52 (2) of the Act provides for condonation of this omission relating to procedure by enacting that the publication of the notification would be conclusive evidence that the Scheme was duly framed and sanctioned. It fortifies our conclusion that the provision is directory only and its non-compliance does not invalidate the Scheme.

The result is that these petitions fail and are dismissed. The petitioners in each case shall bear their own costs and pay out of the security amount those incurred by the respondents Nos. 1, 2 and 3. There shall be two sets of costs, one for the respondents Nos. 1 and 2 and another for the respondent No. 3. The remaining amount of security, if any, shall be refunded. Hearing fee, in each case, Rs. 100.