# AHMEDABAD MUNICIPAL CORPORATION & ANR v. AHMEDABAD GREEN BELT KHEDUT MANDAL & ORS

- **Citation:** [2014] 11 S.C.R. 855
- **Court:** Supreme Court of India
- **Decided:** 2014-05-09
- **Case number:** Civil Appeal Nos.1542-44 of 2001
- **Bench:** Dr. 8.S. Chauhan, J. Chelameswar, M.Y. Eqbal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ahmedabad-municipal-corporation-anr-v-ahmedabad-green-belt-khedut-mandal-ors-29466
- **Pages:** 38

## Headnote

B
Gujarat Town Planning and Urban Development Act,
1976 - ss. 40(3)(jj)(iv) and 20(2) - Re-acquisition u/s.
C
40(3)(jj)(a) for Town Planning Scheme - Of the land which
was de-reserved u/s. 20(2) after its acquisition for
development plan - Permissibility of re-acquisition of such
land - Held: The development plan and Town Planning
Scheme, both are two different things - Hence, re-acquisition
D
of d.e-reserved land, under Town Planning Scheme is
permissible -
In such acquisition provisions of Land
Acquisition Act, would riot be applicable - Land Acquisition
Act, 1894.
Interpretation of Statutes - Individual hardship cannot be
a ground to strike down a statutory provision by not giving
effective meaning to every word of the provision, language
whereof is unequivocal.
Disposing of the matters, the Court
E
F
. HELD: 1.1. The High Court has recorded an
erroneous finding that if a designation lapses under
Section 20 of Gujarat Town Planning and Urban
Development Act, 1976, the land cannot be again
G
reserved in a town planning scheme, and that if the land
cannot be acquired under Section 20 for want of capacity
to pay any compensation under the Land Acquisition Act
1894, it cannot be allowed to be acquired indirectly on
855
H
856
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A lesser payment of compensation as provided under the
Act 1976. [para 39] [890-G]
I
1.2. The town planning scheme provides for pooling
the entire land covered by the scheme and thereafter reB shuffling an.d reconstituting of plots, the market value of
the original plots and final plots is to be assessed and
authority has to determine a·s to whether a land owner has
suffered some injury or has gained from such process. Reconstitution of plots is permissible as provided under the
scheme of the Act as is evident from cogent reading of
C Section 45(2)(a)(b)(c) and Section 52(1)(iii) in accordance
with Section 81 of the Act 1976. By re-constitution of the
plots, if anybody suffers injury, the statutory .Provisions
provide .for compensation under Section 67(b) read with
Section 80 ofthe Act 1976. By this re-constitution and
D readjustment of plots, there is no vesting of land in the
local authority and therefore, the Act provides for payment
of non-monetary compensation. When the scheme comes
into force all rights in the original plots are extinguished,
and simultane_ously therewith ownership springs in the reE constituted plots. It does not predicate ownership of the
plots in. t.he local authority, and no _process - actual or
notional ~of transfer is contemplated in that appropriation.
Thus, in case a land-owner is not pr-0vided with a final plot,
amount of his loss would be payable to him as required u/
F s. 84 of 1976 Act. The provisions of Land Acquisition Act,
1894 would not be applicable. [paras 23 and 25] [881-E-H;
882-A, E-F]
I
•
I
State of Gujarat vs. Shanti/al Mangaldas AIR 1969 SC
G 634 - followed,
H
+
Maneklal
Chhotalal
vs. ·
M. G. .
Makwana
1967 AIR 1373:1967 SCR 65; Prakash Amichand Shah vs.
State of Gujarat and Ors. AIR 1986 SC 468: .1985 (3) Suppl.
SCR 1025 - relied on
•
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
857
GREEN BELT KHEDUT MANDAL
Rustom Cavasjee Cooper vs. Union of India AIR 1970
A
SC 564: 1970 (3) SCR 530; P.. Vajravelu Mudaliar vs. The
Special Deputy Collector for Land Acquisition, West Madras
andAnr. AIR 1965 SC 1017: 1965 SCR 614; Union of India
vs. The Metal Corporation of India and Anr. AIR 1967 SC 637:
1967 SCR 255 -·stood overruled.
B
lshwari Khetan Sugar Mills (P) Ltd. etc .etc. vs. The State
of U. P. and Ors. AIR 1980 SC 1955: 1980 (3) SCR 331;
State of West Bengal vs. Mrs. Bella Banerjee and Ors. AIR
1954 SC 170: 1954 SCR 558 - referred to.
c
1.3. Section 40(3)(jj) only regulates discretion of the
Area Development Authority (ADA) while making the draft
development plan. The land acquired under Section 20
read with Section 12 of the Act 1976 would need
infrastructural facility and the original plot which is D
acquired would require

## Text

_Characters 0–39,881 of 72,319. This is a partial read: ask again with offset=39881 for what follows._

•
[2014] 11 S.C.R. 855
AHMEDABAD MUNICIPAL CORPORATION & ANR.
A
v.
AHMEDABAD GREEN BELT KHEDUT MANDAL & ORS.
(Civil Appeal Nos.1542-44 of 2001)
MAY 9, 2014
[DR. 8.S. CHAUHAN, J. CHELAMESWAR AND
M.Y. EQBAL, JJ.]
B
Gujarat Town Planning and Urban Development Act,
1976 - ss. 40(3)(jj)(iv) and 20(2) - Re-acquisition u/s.
C
40(3)(jj)(a) for Town Planning Scheme - Of the land which
was de-reserved u/s. 20(2) after its acquisition for
development plan - Permissibility of re-acquisition of such
land - Held: The development plan and Town Planning
Scheme, both are two different things - Hence, re-acquisition
D
of d.e-reserved land, under Town Planning Scheme is
permissible -
In such acquisition provisions of Land
Acquisition Act, would riot be applicable - Land Acquisition
Act, 1894.
Interpretation of Statutes - Individual hardship cannot be
a ground to strike down a statutory provision by not giving
effective meaning to every word of the provision, language
whereof is unequivocal.
Disposing of the matters, the Court
E
F
. HELD: 1.1. The High Court has recorded an
erroneous finding that if a designation lapses under
Section 20 of Gujarat Town Planning and Urban
Development Act, 1976, the land cannot be again
G
reserved in a town planning scheme, and that if the land
cannot be acquired under Section 20 for want of capacity
to pay any compensation under the Land Acquisition Act
1894, it cannot be allowed to be acquired indirectly on
855
H
856
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A lesser payment of compensation as provided under the
Act 1976. [para 39] [890-G]
I
1.2. The town planning scheme provides for pooling
the entire land covered by the scheme and thereafter reB shuffling an.d reconstituting of plots, the market value of
the original plots and final plots is to be assessed and
authority has to determine a·s to whether a land owner has
suffered some injury or has gained from such process. Reconstitution of plots is permissible as provided under the
scheme of the Act as is evident from cogent reading of
C Section 45(2)(a)(b)(c) and Section 52(1)(iii) in accordance
with Section 81 of the Act 1976. By re-constitution of the
plots, if anybody suffers injury, the statutory .Provisions
provide .for compensation under Section 67(b) read with
Section 80 ofthe Act 1976. By this re-constitution and
D readjustment of plots, there is no vesting of land in the
local authority and therefore, the Act provides for payment
of non-monetary compensation. When the scheme comes
into force all rights in the original plots are extinguished,
and simultane_ously therewith ownership springs in the reE constituted plots. It does not predicate ownership of the
plots in. t.he local authority, and no _process - actual or
notional ~of transfer is contemplated in that appropriation.
Thus, in case a land-owner is not pr-0vided with a final plot,
amount of his loss would be payable to him as required u/
F s. 84 of 1976 Act. The provisions of Land Acquisition Act,
1894 would not be applicable. [paras 23 and 25] [881-E-H;
882-A, E-F]
I
•
I
State of Gujarat vs. Shanti/al Mangaldas AIR 1969 SC
G 634 - followed,
H
+
Maneklal
Chhotalal
vs. ·
M. G. .
Makwana
1967 AIR 1373:1967 SCR 65; Prakash Amichand Shah vs.
State of Gujarat and Ors. AIR 1986 SC 468: .1985 (3) Suppl.
SCR 1025 - relied on
•
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
857
GREEN BELT KHEDUT MANDAL
Rustom Cavasjee Cooper vs. Union of India AIR 1970
A
SC 564: 1970 (3) SCR 530; P.. Vajravelu Mudaliar vs. The
Special Deputy Collector for Land Acquisition, West Madras
andAnr. AIR 1965 SC 1017: 1965 SCR 614; Union of India
vs. The Metal Corporation of India and Anr. AIR 1967 SC 637:
1967 SCR 255 -·stood overruled.
B
lshwari Khetan Sugar Mills (P) Ltd. etc .etc. vs. The State
of U. P. and Ors. AIR 1980 SC 1955: 1980 (3) SCR 331;
State of West Bengal vs. Mrs. Bella Banerjee and Ors. AIR
1954 SC 170: 1954 SCR 558 - referred to.
c
1.3. Section 40(3)(jj) only regulates discretion of the
Area Development Authority (ADA) while making the draft
development plan. The land acquired under Section 20
read with Section 12 of the Act 1976 would need
infrastructural facility and the original plot which is D
acquired would require to be re-constituted as a final plot
and to make a building site. The provisions of the· Act
have to be read as a whole and therefore the provision
of Section 40(3)(jj)(a)(iv) for sale has to be read
inconsonance/conjointly with the other statutory E
provisions and not in isolation. The sale upto the extent
of 15% is from the total area covered under the scheme
and not in respect of every plot of land. In order to
generate financial resources for the development of
infrastructure, the saleable plot for residential, commercial
F
and industrial use are allotted by the appropriate
authority. Similarly, while re-constituting the plots, final
plot is offered to the original owner for its beneficial use.
[para 30) [885-B-D]
K.L. Gupta and Ors. vs. The Municipal Corporation of G
Greater Bombay and Ors. AIR 1968 SC 303 1968 SCR 674
- followed.
Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd.
H,
858
SUPREME COURT REPORTS
. [2014).11 S.C.R.
A and Ors. AIR 2003 SC 511: 2002 (4) Suppl. SCR 517 -
distinguished.
·
1.4. The development plan is prepared under Chapter
II and town planning scheme is made under Chapter V
8 of the 1976 Act. Therefore, they are.two different things.
The development plari is a macro plan for a vast area
wherein a town planning scheme is minor scheme within
the town~ Section 40(1) simply provides that in the making
of town planning scheme the authority has to have
C regard to the final development of the plan, if any. Thus,
the words "having regard to the development plan" in
Section 40 means that town planning scheme cannot
disregard or ignore the designationireservation made in
the development plan. Under. Section 20 of the Act, it is ·
provided that if an acquisition does not take place by
D agreement or under the Land Acquisition Act, 1894 in
respect of certain lands designated in the final
development plan forthe six purposes mentioned in subsection (2) of Section 12 within a period of 10 years from
the coming into force of the final .development plan, the .
E designation of the land under these clauses shall be
deemed to have lapsed. Therefore, the provision for
lapsing of the designation of the land does not take it out
of the purview of town planning scheme and such a
provision does not prevent the making of a provision in
· F a town planning scheme for any reservation specified in
Section 40(3). [para 29) [884-8-F]
1.5. Just because the authority's draft scheme also
provides for residential purposes, it does not .mean that
G the land would be used exclusively for residential
purpose and .it cannot have even small marketing place
or a small dispensary. [para 35) [889-H; 890-A]
Bhikhubhai Vithalbhai Patel vs. State of Gujarat and Anr.
H
AIR 2008 SC 1771: 2008 (4) SCR 1051 - referred to.
•
• . AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
859
GREEN BELT KHEDUT MANDAL
· 1.6. Hardship of an individual cannot be a ground to
A
strike down a statutory provision for the reason that a
result flowing from a statutory provision is never an evil."
It is the duty of the court to give full effect to the statutory
provisions under all circumstances. Merely because a
person suffers from hardship cannot be a ground for not
B
giving effective and grammatical meaning to every word
of the provisions if the language used therein is
unequivocal. [para 37] [890-C-D]
The Martin Bum Ltd. vs. The Corporation of Calcutta AIR
1966 SC 529: 1966 SCR 543; Tata Power Company Ltd. vs.
C
Reliance Energy Limited and Ors. (2009) 16 SCC 659: 2009
(9) SCR 625; Rohitash Kumar and Ors. vs. Om Prakash
Sharma and Ors. AIR 2013 SC 30: 2012 (13) SCR 47 - relied
on.
2. In the transferred cases it is pre-mature to
challenge the resolution dated 16.5.2008 as it is a first
step to initiate the proceedings under the Act and the
Rules. As the authority is only dealing with the issues at
D
a draft stage and the applicants have ample opportunity
E
to file their objections and are entitled to personal hearing
as required under Rule 26 clause (4), the matter can be
adjudicated before the· statutory authority. Therefore, it is
not proper to decide the cases on merits at such a
premature stage. More so, there is no reason to believe
F
that the authorities would act arbitrarily and would not
take into consideration the grievance raised by the
applicants. [para 41-43] [891-D-E; 892-A, E]
Jilubhai Nanbhai Khachar etc.etc. vs. State of Gujarat and
Anr. etc. etc. AIR 1995 SC 142: 1994 (1) Suppl. SCR 807;
G
Ashutosh Gupta vs. State of Rajasthan and Ors. AIR 2002 SC
1533: 2002 (2) SCR 649; Nagpur Improvement Trust and Anr.
vs. Vithal Rao and Ors. AIR 1973 SC 689: 1973 (3) SCR 39;
Chairman, Indore Vikas Pradhikaran vs. Mis. Pure Industrial
H
SUPREME. COURT REPORTS
•
860
[2014] 11 s.C.R
A Cock and Chem. Ltd. and Ors. AIR 2007 SC 2458: 2007 (6)
SCR 799; Shrirampur Municipal Council, Shrirampur vs.
Satyabhamabai Bhimaji Dawkher and Ors. (2013) 5 SCC 627:
2013 (2) SCR 664 - referred to.
.
I
B
Case Law Reference:
'
1994 (1) Suppl. SCR 807 referred to
Para 16
2002 (2) SCR 649
referred to
Para 17
1985 (3) Suppl. SCR 1025 relied on
Para 18
c
1973 (3) SCR 39
referred to
Para 20
2002 (4) Suppl. SCR 517 distinguished
Para 21
2007 (6) SCR 799
referred to
Para 21
D
2013 (2) SCR 664
referred to
Para 21
1967 SCR 65
.
I
rehed on
Para 24
1954 SCR 558
referred to
Para 27
E
1970 (3) SCR 530
stand overruled Para 27
1965 SCR 614
stand 1overruled Para 27
1967 SCR 255
stand overruled Para 27
1980 (3) SCR 331
referred to
Para 27
F
1968 SCR 674
followed
Para 33
AIR 1969 SC 634
followed
para 34
2008 (4) SCR 1051
referred to
Para 35
G
1966 SCR 543
relied on
Para 37
. 2009 (9) SCR 625
relied on
Para 37
2Q12 (13) SCR 47
relied on
Para 37
H
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
861
GREEN BELT KHEDUT MANDAL
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. A
1542-1544 of 2001.
From the Judgment & Order dated 24.11.2000 in Special
Civil Application Nos. 1189/98, 4659/98 and 4494/98 of the
High Court of Gujarat at Ahmedabad.
WITH
C.A. Nos. 1545-1550, 1551-1556 of 2001, 1864 of 2014.
T.C. Nos. 12-13 of 2010.
Huzefa Ahmadi, Shirish H. Sanjanwala, C.A. Sundaram,
B
c
· Harish N. Salve, Suresh Shelat, T.R. Andhyarujina, Shekhar
Naphade, Shamik Sanjanwala, Rohan Sharma, Mahesh
Agarwal, Abhinav Aggarwal, Abhinav Aggarwal,.EC. Agrawala,
Sanjay Kapur, Anmol Chandan, Lekha Vishwanath, Purvish D
Malkan, Prasenjit Keswani, Satyajit Saha, V.D. Khanna,
Preetesh Kapur, Hemantika Wahi, Jesal, Dhaval Nanavati,
Kaushal Pandya, Sangeeta Singh, Jayashree Wad, Ashish
Wad, Kanika Baweja, Anshuman Srivastava, J.S. Wad, Abjijat
P. Medh, Sheela Goel, Sumita Hazarika (foe Parekh & Co.), E
Haresh Raichura for the appearing parties.
The Judgment of the Court was delivered by
Dr. B.S. CHAUHAN, J. 1. Civil Appeal Nos.1542-44 of
~001 have been preferred challenging the impugned judgment F
and order dated 24.11.2000, passed in Special Civil
Application Nos.1189, 4494 and 4659 of 1998 by the High
Court of Gujarat at Ahmedabad, wherein the Writ Petition filed
by the respondents has been partly allowed holding that Section
40(3)(jj)(a) of the Gujarat Town Planning and Urban G
Development Act, 1976 (hereinafter referred to as the 'Act
1976') would be operative for the land other than the land
covered by Section 20(2) of the Act 1976, though upheld the
validity of Section 40(3)Gj) of the Act 1976.
H
862
. SUPREME COURT REPORTS
[2014] 11 S.C.R.
A
Civil Appeal Nos.1545-50 of 2001 have been preferred
by the State of Gujarat against the same judgment raising the
grievance to the same extent.
Civil Appeal Nos.1551-56 of 2001 have been filed by the
8 Ahmedabad Urban Development Authority (hereinafter referred
to as 'AUDA') against the same judgment passed in same
cases. alongwith Special Civil Application Nos.4859, 5934,
7476 of 1998 and 4271 of 2000.
Civil Appeal No. 1864 of 2014 has been filed against the
C impugned judgment and order dated 9.10.2009 passed by the
High Court of Gujarat at Ahmedabad in Special Civil
. Application No.10912 of 2009, wherein the matter stood
disposed of in terms of the subject matter in appeals referred
D
to above.
·
In Transferred Case (C) Nos.12-13 'of 2010, .Writ Petition
Nos.2879 and 2880 of 2009 had been filed by the tenure
holders/ petitioners before the High Court of Gujarat and as the
same factual and legal issues are involved therein, the petitions
E stood transferred to this court.
F
2. As similar factual and legal issues are involved in all the
cases for convenience T.P. (C) Nos. 12-13 of 2010 and Civil
Appeal Nos. 1542-44 of 2001 are taken to be the leading
cases.
,
.
All these matters relate to the validity and issues of
interpretation of Section 40(3)(jj) of the Act 1976 and
application of certain statutory provisions of the Gujarat Town
Planning and Urban Development Rules, 1979 (hereinafter
G referred to as the 'Rules 1979'). The basic. question that has
been raised on behalf of the tenure-holders (Association of land
owners) is that whether the provisions contained in Sections
40(3)(jj) of the Act 1976 are ultra-vires of Articles 14, 19 and
300-A of the Constitution of India, 1950 (hereinafter referred
H
•
• AHMEDABAD MUNICIPAL CORPORATION v. ARMEDABAD
863
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
to as the 'Constitution') and have also challenged the action on
A
the part of the Municipal Corporations (Ahmedabad and Surat)
for declaring the intention to frame town planning schemes by
issuing notifications, and further to hold that the action of the
Municipal Corporations to take away land of the tenure-holders
to the extent of 50% without paying any compensation as .ultra-. B
vires and further challenged the respective resolutions of the
State Government in this regard.
The main contention of the respondents before the High
Court was that by way of the impugned legislation, the
appellants have designed a circuitous method to acquire land C
without paying any amount of compensation. The ancillary
ground urged is that the land which was not acquired on
payment of compensation under Section 20 of the Act 1976
cannot again be acquired indirectly and without payment of
compensation by introducing the impugned legislation enabling
D
Authority to prepare a town planning scheme and reserve the
land to the extent of specified percentage for public purposes
like roads, parks, play grounds, gardens and open spaces.
Further, as per Section 40(3)0j)(a)(iv) of the Act, 1976 the sale
of land by the Appropriate Authority for raising money for the
E
purpose of providing infrastructural facilities is beyond
legislative competence being outside the purview of Entry 18
of List-II and Entry 20 of the concurrent list contained in 7th
Schedule to the Constitution. Moreover, compensation payable
under Section 82 of the Act, 1976 in respect of property or right
F
injuriously affected by the scheme, on the basis of market value
calculated on the date of issue of intention to frame a scheme,
is not an adequate compensation. Further, it was not justified
under the town planning scheme or the urban· development to
permit acquisition of certain percentage of properties of citizens
G
for its disposal in the hands of public authorities for the purpose
of raising its fund, even to be used for further development.
Under the Act 1976, Section 40(3)G) as it originally stood,
provided for reserving only 10 per cent in the town planning
scheme for providing housing accommodation to the members
H
864
SUPREME COURT REPORTS
I
[2014] 11 S.C.R.
A of the weaker sections. Therefore, the amendment by which the'·
said area has been increased from 10% to 15%· is not only
unwarranted but also illegal.
3. Facts and circumstances giving rise to these matters
B are as under:
A. In 1963, Ahmedabad Municipal Corporation (hereinafter
referred to as the 'AMC') prepared and submitted a
development plan under the Bombay Town Planning Act, 1964
(hereinafter referred to as "Bombay Acr) whereby the lands of
•
C the respondents known as the 'green belt' were kept for open
space and recreation. On 21.8.1965, the State Government
sanctioned the development plan which came into force on .:i
1.10.1965.
'·
'
0
B. AMC prepared its revised development plan and
published it on 15.1.1976 whereby lands of the respondents
were reserved for "public housing".
E
F
G
C. The Bombay Act was replaced by the Act 1976 under
which AUDA was alone competent to draft development jJlan.
D. The State Government sanctioned the development
plan on 2.11.1987 which came into force on 3.12;1987 whereby'
the area known as 'green belt' was reserved for "public housing
for different government organizations".
E. The AUDA prepared draft revised development plan
which was published on 29.11.1997. The land reserved for
"public housing for different government organizations" was dereserved and put under the category as "restricted residential
utility services and other uses zones".
F. The AUDA in exercise of the powers· under Section 21
of the Act 1976 came out with a draft revised development. plan
in the year 1998.
G. The respondents herein filed a Writ Petition before the
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD 865
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.)
Gujarat High Court challenging the draft revised development A
plan and for direction to the appellants herein to acquire their
lands as per the plan of 1987 within a period of 6 months failing
which the plan would lapse.
H. The Act 1976 was amended on 1.5.1999 and Section
B
40(3)(jj) was inserted. The writ petition was amended and the
vires of Sections 12 and 40(3)0i) of the Act 1976 were also
challenged.
I. The AUDA vide its resolution dated 5.5.1999 approved
the proposed revised development plan. Declarations were C
made in the year 2000 for making town planning schemes
covering "restricted residential utility services and other uses
zones".
J. The writ petition was partly allowed by the High Court o
vide impugned judgment and order dated 24.11.2000.
Hence, these appeals.
4. We have heard S/Shri C.A. Sundaram, Shirish H.
Sanjanwala, Suresh Shela!, Huzefa Ahmadi, learned senior E
counsel for the tenure-holders or association of farmers and S/
Shri Harish N. Salve, T.R. Andhyarujina, learned senior counsel
and Preetesh Kapur, learned counsel for the State and statutory
authorities.
5. All the submissions advanced by the counsel for the F
respective parties are the same which had been agitated
before the High Court and reference thereof has already been
made. Learned counsel appearing for the tenure-holders have
submitted that the judgment of the High Court as far as the
validity of the statutory provision is concerned, does not require G
any interference whatsoever but earmarking of the land to the
extent of 50% without paying any compensation amounts to
expropriation and in all circumstances percentage fixed by the
statutory provisions is excessive.
H
866
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A
6. On the contrary, learned counsel appearing for the state
and statutory authorities have submitted that the judgments
impugned have made the scheme unworkable as one tenure
holder may get all infrastructure faciliiies while the adjacent
neighbour may not get any facility at ;all. The area which can
B be taken away by the authority for sale to the extent of 15%
relates to the total area covered by the scheme and not from
each and every plot.
7. In order to properly understand the dispute herein,
C reference has to be made to various provisions of the Act 1976.
The Preamble of the Act 1976 indicates that the purpose 01f the
legislation is.to consolidate and amend the law relating to the
making and execution of development plans and town planning
schemes in the State of Gujarat. Section 12 of the Act 1976
provides for proposals and reservations to be made in the
D development plan for the approval of the State Government.
8. Clause (x) of Section 2 of the Act 1976 defines
"development plan" while clause (xxvi) thereof defines "scheme".
E
Section 9 of the Act 1976 provides that the Development
Authority shall prepare and submit the development plan to the
State Government for the whole or any part of the development
area in accordance with the provisions of this Act. Section 10
thereof requires that a copy of draft development plan is to be
kept open for public inspection.
F
Section 12 provides for the .contents of draft development
plan generally providing the mann.er in which the use of land in
the area covered by it shall be regulated and also indicating
the manner in which the development therein shall be carried
G out. In particular, it shall provide, so far as may be necessary,
·proposal for designating the use of the land for residential,
industrial, commercial, agricultural and recreational purposes;
for the reservation of land for public purposes, such as schools,
college and other educational institutions, medical and public
H health institutions; proposals for designation of areas for
•
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
867
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
zoological gardens, green belts, natural reserves and
A
sanctuaries; transport and communications, such as roads,
highways, parkways, railways, waterways, canals and airport,
including their extension and development; proposals for water
supply, drainage, sewage disposal, other public utility
amenities and service including supply of electricity and gas;
B
reservation of land for community facilities and services, etc.
Section 20 of the Act reads as under:
"(1) The area development authority or any other authority
for whose purpose land is designated in the final
C
development plan for any purpose specified in clause (b),
clause (d), clause (f), Clause (k), clause (n) or clause (0)
of sub-section (2) of section 12, may acquire the land
either by agreement or under the provisions of the land
Acquisition Act, 1894.
D
(2) If the land referred to in sub-section (1) is not acquired
by agreement within a period of ten years from the date
of the coming into force of the final development plan or if
proceedings under the Land Acquisition Act, 1894 (I of
E
1894), are not commenced within such period, the owner
or any person interested in the land may serve a notice
on the authority concerned requiring it to acquire the land
and if within six months from the date of service of such
notice the land is not acquired or no steps are commenced ·
for its acquisitions, the designation of the land as
F
aforesaid shall be deemed to have lapsed".
Section 40(3) 0) & 0i)(a) of the Act reads as under:
"0) the reservation of land to the extent of ten. percent; or
G
such percentage as near thereto as possible of the total
area covered under the scheme for the purpose of
providing housing accommodation to the members of
socially and economically backward classes of people.
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(jj) (a) the allotment of land from .the total area covered
under the scheme, to the extent of:'
B
c
D
E
F
(i) Fifteen percent for roads;
(ii) Five percent for parks, playgrounds, garden and open
space
(iii) Five percent for social infrastructure such as schools,
dispensary, fire brigade, public utility place as earmarked
in the Draft Town Planning Scheme.
·1 ..
(iv) FiftE*l percent for sale by appropriate Authority for
111Sidltntial, commercial or industrial use depending upon
the nature of development.
Provided that the percentage of the allotment of land
specified in paragraphs (i) to (iii) may be altered
depending upon the nature of development and for the
re.sons to be recorded in writing;
·
·
(b) the proceeds from the Sale of land referred to in para
(iv) of sub-clause (a) shall be used for the purpose of
providing infrastructural facilities in the area covered under
the scheme.
·
(c) The land allotted for the purposes referred to in
paragraphs (ii) and (iii) of sub-clause (a) shall not be
'
.
changed by variation of schemes for the purpose other
than public purpose."
· ·
Section 48 of the Act 1976 defines the power of the State
Government to sanction draft scheme. Further, Section 48-A
G reads as under:
H
"(1) Where a draft scheme has been sanctioned by the
State Government under sub-section (2) of section 48,
(hereinafter in this section, referred to as 'the sanctioned
draft scheme'), all lands required by the appropriate
•
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
869
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
authority for the purposes specified in clause (c), (f), (g),
A •
or (h) of sub-section (3) of section 40 shall vest absolutely
in the appropriate authority free from all encumbrances.
(2) Nothing in sub-section (1) shall affect any right of the
owner of the land vesting in the appropriate authority under
B
that sub-section."
Section 77 of the Act 1976 deals with cost of scheme,
which also includes all sums payable as compensation for land
reserved or designated for any public purpose or for the
purposes of appropriate authority which is solely bene.ficial to c
the owners of the land or residents within the area of the
scheme and also includes portion of the sums payable as
compensation for land reserved or designated for any public
purpose. It also includes legal expenses incurred by the
appropriate authority in making and in the execution of the D.
scheme. Clause (f) thereof reads as under:
(f) any amount by which the total amount of the values of
the original plots exceeds the total amount of the values
of the plots included in the final scheme, eactf of such plots
E
being estimated at its market value at the date of the
declaration of intention to make a scheme, with all the
buildings and works thereon at the said date and without
reference to improvements contemplated in the scheme.
other than improvements due to alteration of its F
boundaries.
Clause (2) of Section 77 reads:
(2) If in any case the total amount of the. values of the plots
included in the final scheme exceeds the total amount of G
the values of the original plots, each of such plots being
estimated in the manner provided in clause (f) of subsection (1), then the amount of such excess shall be
deducted in arriving at the costs of the scheme as defined
in sub-section (1).
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Section 79 of the Act 1976 provides for contribution
B
c
D
E
towards costs of scheme.
·
Section 82 of the Act 1976 reads ·as under:
Compensation in respect of property or right
injuriously .affected by scheme'.
The owner of any property or right which is injuriously
affected by the making of a town planning scheme shall, if
he makes a claim before the Town Planning Officer within
the prescribed time, be entitled to be compensated in
respect thereof by the appropriate authority or by any
person benefited or partly by the appropriate authority and
partly by such person as the Town Planning Officer may in
each case determine:
Provided that the value of ~uch property or rights shall
be deemed to be its market value at the date of the
declaration of intention to make a scheme or the date of
the notification issued by the State Government under subsection (1) of section 43 without reference to
improvements contemplated in the scheme, as the case
may be.
·
I
Section 84 thereof deals with the cases in which amount
payable to owners exceeds amount due froni him. As per the
F
provisions of Section 84, if the owner of an original plot is not
provided with a plot in the preliminary scheme or if the
contribution to be levied from him under Section 79 is less than
the total amount to be deducted therefrom, the net amount of
his loss, shall be payable to him.
G
Section 85 of the Act 1976 deals with the cases iri which
the value of the developed plot is less than the amount payable
by the owners. In case the amount which would be due to the
appropriate authority under the Act from the owner of a plot to
be included in the final scheme exceeds the value of such plot
H estimated on the assumption that till scheme has been
•
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
871
GREEN BELT KHEDUT MANDAL [DR. 8.S. CHAUHAN, J.)
completed, the owner of such plot has to make payment to
A
authority of the amount of such excess within the prescribed
period.
Sub-Section (2) of Section 85 provides that on meeting
certain legal requirements, the plot included in the final scheme
"shall vest absolutely in the appropriate authority free from all
encumbrances but subject to the provisions of the Act".
9. Rule 22 of the Rules 1979 reads as:
B
(1) The compensation payable under section 45 shall be c
difference between the value of the property (inclusive of
structure) on the basis of the existing use and that on the
basis of permitted use both values being determined as
on the date of declaration of intention to prepare the
scheme.
(2) In making the valuation on the basis of permitted use,
allowance shall be made for the expenses that may have
to be incurred in so converting the existing structures as
to make them suitable for permitted use.
(3) In case provision is made for continuance of the existing
use for a number of years taking into consideration the
future life of the structure the compensation payable shall
be limited to present value of the standing structure less
value of materials at the end of such period.
(4) xx
x
D
F
10. Form H attached to the Rules 1979 is a Form to be
filled by the Town Planning Officer while preparing the draft
planning scheme and it clearly makes it evident that "any
G
person who is injuriously affected by the above town planning
scheme, is entitled to claim the damages in accordance with
Section 82 of the Act 1976".
11. Form K attached to the said Rules 1979 is also to be
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SUPREME COURT REPORTS
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filled up and sent by the. Town Planning Officer while preparing
the final draft planning scheme as required under Section 52(3)
and it puts him under an obligation to determine and record as
. under:
B
"(i)
The compensation payable to you under Section 80
(ii)
Amount payable by you under Section 80
c
(iii)
Estimated amount of the increment under Section
78 .
(iv)
Amount of incremental contribution under Section
79
(v)
The compensation under Section 82
D
(vi)
Net amount of contribution
(vii) Net amount payable to you"
12. The aforesaid provisions read conjointly gives a clear
picture that the scheme. is just like the consolidation
E proceedings as the land, belonging to various persons, covered
by the scheme first. be put into a pool and then the land be
allocated for different purposes and, in such a way, after having
all deductions for the purpose of either by way of acquisition
of land under the Land Acquisition Act 1894 (hereinafter
F
referred to as 'Act 1894') or the land taken under the provisions
of Section 40(3)(jj)(a) of the Act 1976, the loss and profit of
individual tenure holder is to be calculated. After assessing the
market value on the date of declaration of the intention to frame ·
a scheme and the value of the property after making all these
G deductions, adjustments, improvements etc. and, therefore, if
a person has suffered any loss, his loss is to be made good
from the funds of the scheme and if a person has gained an
amount equivalent to net gain, is to be recovered from him .
. 13. The main issue involved herein is whether after the
1
H
•
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
873
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
lapse of the period for reservation as per Section 20(2) of the
A
Act 1976, can the said
0 land be again acquired by resorting to
the provisions of Section 40 of the Act 1976. In the present
case, the State Government had sanctioned a development
plan on 2.11.1987 which came into force on 3.12.1987 wherein
the area known as the "green belt" was reserved for "public
B
housing for different government organizations". The said area
was deemed to be de-reserved by virtue of the provisions of
Section 20 after the expiry of a period of 10 years. Despite the
respondents having served the six months' notice, the said land
was still not acquired by the government. It has been submitted c
on behalf of the respondents that having re.gard to the
provisions of Section 20 read with Section 40 of the Act 1976,
the said land could not be re-acquired/re-designated by framing
a town planning scheme. Section 48-A of the Act 1976 provides
for vesting of land in the appropriate authority. However, the
0
said section does not cover the requirement under Section
40(3)(jj)(a) of the Act. It has been further argued that the other
relevant provision is Section 107 of the Act 1976 which provides
that land needed for a town planning scheme shall be deemed
to be land needed for a public purpose within the meaning of
the Act 1894. Therefore, without invoking the provisions of the
E
Act 1894, the said land could not be re-notified under Section
40 of the Act 1976. . ·
14. After considering all the submissions of the parties, the
High Court has recorded the following conclusions:
F
(I) The contention that prescribing of various percentage
under Section 40(3)(jj)(a) of the Act 1976 amounts to excessive
legislation is rejected. The unamended clause (jj) of Section 40
provided for allotment of 10% of the land in the scheme or such
G
percentage as near thereto as possible for the purpose of sale
for residential, commercial and industrial use. The present
provision as exists today has now specified various percentage
of the land to be set aside for specific purpose, i.e. 15% for
roads, 5% for parks, playgrounds etc., 5% for social
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infrastructure and 15% for sale for woviding infrastructural
facilities. There has only been an increase of 5% in the
percentage of land that could be sold 'of by the appropriate
authority as compared to an increase of 30% as contended by
the respondents. The current provision now only specifies
B specific percentage of the land to be set aside for the specified
purpose which was already provided for in the Act 1976 and
there is no further reservation that is provided.
(II) Entry 18 of List II of the Constitution provides for
C legislative competence with respect to land i.e. rights in or over
the land including land improvement. Entry 20 of Concurrent List
of the Constitution deals with economic and social planning.
Therefore, the State Legislature was well within its competence
to specify the percentage of areas to be demarcated/used for
the specified purpose. Further, a mere increase of percentage
D of land to be demarcated for a specific purpose can in no way .
said to be an excessive legislation. Section 91 of the Act 1976
provides for establishment of funds· for utilization by the
appropriate authority in order to meet expenditures for the
development of land, administration of the Act and such other
E purpose as the State Government may direct. With the increase
in cost of construction, the requisite funds for development.
would naturally increase and therefore, there does not seem to
be any impediment in prescribing a higher percentage of land
that is to be sold for such purposes.
F
'I
(Ill) The respondents' claim to the benefit under Article 300A of the Constitution which provides for a constitutional right to
property is also stood rejected. Eac_h and every claim to
property cannot be termed as a right to property and any
G legislation prescribing a reasonable restriction over the same
is a valid exception to the said Article .
H
.
(IV). Even the contention of the respondents that the
compensation prescribed under Section 82 of the Act 1976
was inadequate stands rejected.
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD . 875
GREEN BELT KHEDUT MANDAL [DR. S.S. CHAUHAN, J.)
15. The aforesaid findings have been challenged by the A
State/statutory authorities as well as by the Association of land
owners to the extent the findings have been recorded against
them.
16. It is in this backdrop that we have to test the B
submissions advanced on behalf of the parties in the light of
law declared by this Court earlier on the issues involved herein.
In Jilubhai Nanbhai Khachar etc.etc. v. State of Gujarat
& Anr., etc.etc., AIR 1995 SC 142, this Court held:
c
• ... Though Articles 31 and 19(1)(f) of the
Constitution accorded to 'property' the status as a
fundamentaJ right, there emerged conflict between the
animation of the Founding Fathers and the judicial
interpretation on the word 'compensation' when private o
property was expropriated to subserve ·common good or
to prevent common detriment.. ... Concomitantly
legislature has power to acquire the property of private
person exercising the power of eminent domain by a law
for public purpose. The law may fix an amount or which E
may be determined in accordance with such principles as
may be laid therein and given in such manner as may
be specified in such law. However, such law shall not be
questioned on the grounds that the amount so· fixed or
amount determined is not adequate. The amount fixed
must not be illusory. The principles laid to determine the F
amount must be relevant to the determination of the
amount..... We are conscious that Parliament omitted
Article 31 (2) a/together. However when the State exercises
its power of eminent domain and acquires the property
of private person or deprives him of his property for public G
purpose, concomitantly fixation of the amount or its
determination be must in accordance with such principles
as laid therein and the amount given in such manner as
may be specified in such a law ..... "
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SUPREME COURT REPORTS
[2014] 11 $.C.R.
17. In Ashutosh Gupta v. State 'of Rajasthan & Ors.,
AIR 2002 SC 1533, this Court held:
"There must be proper pleadings and averments in the
substantive petition before the question of denial of equal
protection of infringement of fundamental right can be
decided. There is always a presumption in favour of the
constitutionality of enactment and.the burden is upon him
who attacks it to ·show that there has been a clear
transgression of the constitutional principles. The
presumption of constitutionality stems from the wide
power of classification which the legislature must, of
necessity possess in making laws operating differently
as regards "different groups of persons in order to give
effect to policies. It must be presumed that the legislature
. understands and correctly appreciates the need of its own
people, that its laws are directed to problems made
manifest by experience."
18. In Prakash Amichand Shah v. State of Gujarat &
Ors., AIR 1986 SC 468, this Court relied upon the judgment of
E this Court in Zandu Pharmaceutical Works Ltd. v. G.J.
F
G
1-1
Desai, Civil Appeal No. 1034 of 1967 decided on August 28,
1969 dealing with the very provisions of the Act, wherein this
Court had observed :
"When the Town Planning Scheme comes into
operation the land needed by a local a_uthority vests by
virtue of Section 53(a) and that vesting for purposes of
the guarantee under Article 31(2) is deemed compulsory
acquisition for a public purpose. To lands which are
subject to the scheme, the provisions of Sections 53 and
67 apply, and the compensation is determined only in
the manner prescribed by the Act. There are therefore
two separate provisions one for acquisition by the
State Government, and the tother in which the
·statutory vesting of land operates as acquisition for
the purpose of town planning by the local authority.
•
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
877
GREEN BELT KHEDUT MANDAL [DR. 8.$. CHAUHAN, J.]
The State Government can acquire the land under the
A
Land Acquisition Act, and the loca/authority only
under the Bombay Town Planning Act.