# INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN SAHAKARI SANSTHA MARYADIT SNEH NAGAR AND OTHERS

- **Citation:** [2023] 2 S.C.R. 84
- **Court:** Supreme Court of India
- **Decided:** 2023-03-03
- **Case number:** Civil Appeal No. 5071 of 2022
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indore-development-authority-v-burhani-grih-nirman-sahakari-sanstha-maryadit-36919
- **Pages:** 35

## Headnote

Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973
- ss. 50 and 54 - Land Acquisition Act, 1894 - ss.4, 5A and 6 -
Indore Development Authority (IDA) passed a resolution u/s.50 of
Act, 1973, declaring its intention to frame a residential scheme
providing for other connected land uses - IDA published the said
scheme - State Government by order delegated its power to the
District Collector to act as Under Secretary - IDA started mutual
negotiations with the landowners for procurement of their land for
the scheme - Mutual negotiations failed - IDA moved the Collector
for acquisition of the land - Notification u/s.4 of the 1894 Act was
published, and report u/s.5A of the 1894 Act was filed before the
Collector for approval - Declaration u/s.6 was published - In year
1997, some lands were released from scheme - The notifications
u/s.4 and s.6 of the 1894 Act was challenged before the Single
Judge of the High Court, which in turn quashed the scheme framed
by the IDA (on the ground that the same had lapsed in view of s.54
of the 1973 Act) as well as the land acquisition proceedings initiated
by the State Government - The IDA preferred appeals before the
Division Bench of the High Court, which confirmed the order of the
Single Judge - On appeal, held: Within three years various steps
were taken for implementation of the scheme including the steps to
acquire the land by negotiations and thereafter approaching the
State Government to acquire the land, the High Court has erred in
declaring that the scheme has lapsed - High Court has adopted too
narrow a meaning while interpreting s.54 of 1973 Act - Further
held, merely because s.5A has not been mentioned in the order of
State Government delegating its power, the entire acquisition
proceedings cannot be declared illegal - When the Collector has
exercised the power of the appropriate Government and a
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declaration u/s.6 has been issued after considering the report on
the objections u/s.5A, the High Court has seriously erred in quashing
the entire acquisition proceedings - Also, it cannot be said that the
release of the land was arbitrary and/or with an object of undue
favour to those persons whose lands have been released - Release
of the land which according to the authority was for valid reasons
or valid grounds has not prejudiced or affected the integrity of the
scheme - As the integrity of the scheme remains the same, thus, the
finding of High Court is unsustainable.
Allowing the appeal, the Court
HELD:1. When within three years various steps were taken
for implementation of the scheme including the steps to acquire
the land by negotiations and even thereafter on failure to acquire
the land by negotiations approaching the State Government to
acquire the land under the Land Acquisition Act, the High Court
has erred in declaring that the scheme has lapsed under section
54 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam,
1973. The High Court has adopted too narrow a meaning while
interpreting and/or considering section 54 of the Adhiniyam. [Para
11][113-G-H]
2. So far as quashing and setting aside the entire acquisition
proceedings including sections 4 & 6 notifications issued under
the provisions of the Land Acquisition Act with respect to the
lands in question on the ground that there was no proper
delegation of power to the Collector with regard to Section 5A of
the Act, is concerned, it is required to be noted that in the present
case, the State Government vide its letter dated 22.3.1985
delegated its power to the District Collector as Deputy Secretary
of the Revenue Department and to the Commissioner of the
division to act as Secretary of the Revenue Department and to
adjudicate matters related to land acquisition by exercising powers
given under Sections 4, 5, 6 and 17 of the Act, 1894. Merely
because Section 5A has not been mentioned in the said order,
the entire acquisition proceedings including notifications under
Sections 4 & 6

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INDORE DEVELOPMENT AUTHORITY
v.
BURHANI GRIH NIRMAN SAHAKARI SANSTHA MARYADIT
SNEH NAGAR AND OTHERS
(Civil Appeal No. 5071 of 2022)
MARCH 03, 2023
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973
- ss. 50 and 54 - Land Acquisition Act, 1894 - ss.4, 5A and 6 -
Indore Development Authority (IDA) passed a resolution u/s.50 of
Act, 1973, declaring its intention to frame a residential scheme
providing for other connected land uses - IDA published the said
scheme - State Government by order delegated its power to the
District Collector to act as Under Secretary - IDA started mutual
negotiations with the landowners for procurement of their land for
the scheme - Mutual negotiations failed - IDA moved the Collector
for acquisition of the land - Notification u/s.4 of the 1894 Act was
published, and report u/s.5A of the 1894 Act was filed before the
Collector for approval - Declaration u/s.6 was published - In year
1997, some lands were released from scheme - The notifications
u/s.4 and s.6 of the 1894 Act was challenged before the Single
Judge of the High Court, which in turn quashed the scheme framed
by the IDA (on the ground that the same had lapsed in view of s.54
of the 1973 Act) as well as the land acquisition proceedings initiated
by the State Government - The IDA preferred appeals before the
Division Bench of the High Court, which confirmed the order of the
Single Judge - On appeal, held: Within three years various steps
were taken for implementation of the scheme including the steps to
acquire the land by negotiations and thereafter approaching the
State Government to acquire the land, the High Court has erred in
declaring that the scheme has lapsed - High Court has adopted too
narrow a meaning while interpreting s.54 of 1973 Act - Further
held, merely because s.5A has not been mentioned in the order of
State Government delegating its power, the entire acquisition
proceedings cannot be declared illegal - When the Collector has
exercised the power of the appropriate Government and a
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declaration u/s.6 has been issued after considering the report on
the objections u/s.5A, the High Court has seriously erred in quashing
the entire acquisition proceedings - Also, it cannot be said that the
release of the land was arbitrary and/or with an object of undue
favour to those persons whose lands have been released - Release
of the land which according to the authority was for valid reasons
or valid grounds has not prejudiced or affected the integrity of the
scheme - As the integrity of the scheme remains the same, thus, the
finding of High Court is unsustainable.
Allowing the appeal, the Court
HELD:1. When within three years various steps were taken
for implementation of the scheme including the steps to acquire
the land by negotiations and even thereafter on failure to acquire
the land by negotiations approaching the State Government to
acquire the land under the Land Acquisition Act, the High Court
has erred in declaring that the scheme has lapsed under section
54 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam,
1973. The High Court has adopted too narrow a meaning while
interpreting and/or considering section 54 of the Adhiniyam. [Para
11][113-G-H]
2. So far as quashing and setting aside the entire acquisition
proceedings including sections 4 & 6 notifications issued under
the provisions of the Land Acquisition Act with respect to the
lands in question on the ground that there was no proper
delegation of power to the Collector with regard to Section 5A of
the Act, is concerned, it is required to be noted that in the present
case, the State Government vide its letter dated 22.3.1985
delegated its power to the District Collector as Deputy Secretary
of the Revenue Department and to the Commissioner of the
division to act as Secretary of the Revenue Department and to
adjudicate matters related to land acquisition by exercising powers
given under Sections 4, 5, 6 and 17 of the Act, 1894. Merely
because Section 5A has not been mentioned in the said order,
the entire acquisition proceedings including notifications under
Sections 4 & 6 of the Act, 1894 and more particularly the
declaration which was issued after considering the report/
objections under section 5A cannot be declared illegal. [Para
12][114-B-D]
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN
SAHAKARI SANSTHA MARYADIT SNEH NAGAR
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3. A declaration under Section 6 of the Act, 1894 could be
issued only after the report submitted under Section 5A has been
considered by the appropriate government. Under Section 5A of
the Act, the objections are required to be considered by the
Collector, i.e., the Collector of a District including a Deputy
Commissioner and any other officer especially appointed by the
appropriate government to perform the functions of a Collector
under the Land Acquisition Act. In the present case, apart from
being specially appointed by the appropriate government to
perform the functions of a Collector, the authority who has
considered the objections under Section 5A is the Collector of a
District. Even the State Government vide its circular dated
6.03.1987 conferred power on the Deputy Collectors for
exercising the functions of the Collector for acquisition of the
land in their respective areas. [Para 12.1][114-D-F]
4. When the Collector has exercised the power of the
appropriate government and a declaration under section 6 of the
Act has been issued after considering the report on the objections
under Section 5A of the Act, the High Court has seriously erred
in quashing and setting aside the entire acquisition proceedings
on the aforesaid ground. [Para 12.3][116-F]
5. So far as the third ground on which the scheme and the
entire acquisition proceedings have been set aside, namely, the
huge and big chunk of land out of the total land sought to be
acquired by the Development Authority which has been released,
is concerned, it is required to be noted that out of the total land
acquired, 68.11% of the land has been developed and 31.89%
has not been developed due to interim orders passed by the
Courts. Even otherwise, it is required to be noted that out of the
total land covered under the scheme, i.e., 332.616 hectares
(277.853 hectares of land acquired through award plus 44.763
hectares of the land owned by the Authority), land has been
released for various purposes to the extent of 54.660 hectares
and still the remaining land would be to the extent of 267.956
hectares out of which the land involved in the present appeals
would be to the extent of 85.430 hectares. According to the
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Development Authority, 111.156 hectares of the land covered
under the scheme was released in favour of Housing Cooperative
Societies because the object of the housing societies and the
scheme was the same. According to the Development Authority,
the Authority/State Government had released the land only of
those societies who had either developed or started development
of colonies or had acquired the title to the land or had obtained
exemption under section 20 of the Urban Land (Ceiling &
Regulation) Act, 1976 before publication of the final scheme under
section 50(7) of the Adhiniyam. According to the Development
Authority, 104.524 hectares of land covered under the scheme
which was released from the scheme, the land use of the said
land was either agricultural or regional park. Release of the land
having area of 46.116 hectares of land was in response to
objections under section 5A of the Act because of certain reasons
like existing houses, religious places, different land use etc. [Para
13][116-G-H; 117-A-D]
6. It cannot be said that the release of the land was arbitrary
and/or with an object of undue favour to those persons whose
lands have been released. As rightly submitted that even
otherwise such lands were to be acquired for residential, park
and industrial purposes, release of the land which according to
the authority was for valid reasons or valid grounds has not
prejudiced or affected the integrity of the scheme. The end result
of the release of some land is that the total area of the scheme is
lesser to that extent but the integrity of the scheme remains the
same. At this stage, it is required to be noted that some of the
lands have already been used by the authority for the purpose of
a park which is used for the benefit of local people. Under the
circumstances, the third ground on which the scheme and the
entire acquisition proceedings have been quashed by the High
Court does not stand on its legs and the said finding is
unsustainable. [Para 13.1][117-E-G]
Rajasthan State Industrial Development and Investment
Corporation v. Subhash Sindhi Cooperative Housing
Society, Jaipur (2013) 5 SCC 427 : [2013] 4 SCR 978;
Union of India v. Bal Ram Singh (1992) 2 Supp SCC
136; Sube Singh v. State of Haryana (2001) 7 SCC
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN
SAHAKARI SANSTHA MARYADIT SNEH NAGAR
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545; Jagdish Chand v. State of Haryana (2005) 10 SCC
162; Dharam Pal v. State of Haryana (2009) 2 SCC
397 : [2008] 17 SCR 564 - referred to.
Sanjay Gandhi Grih Nirman Sahakari Sanstha
Maryadit v. State of M.P. & Others AIR 1991 MP 72;
Adarsh Nagar Grih Nirman Sahkari Sansthan
Maryadit, Bhopal v. State of M.P. and Others 2004 (1)
M.P.L.J. 539 : 2003 SCC OnLine MP 329 - referred
to.
Case Law Reference
[2013] 4 SCR 978
referred to
Para 3.11
(1992) 2 Supp SCC 136
referred to
Para 3.11
(2001) 7 SCC 545
referred to
Para 3.11
(2005) 10 SCC 162
referred to
Para 3.11
[2008] 17 SCR 564
referred to
Para 3.11
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5071
of 2022.
From the Judgment and Order dated 28.08.2014 of the High Court
of Madhya Pradesh at Indore in WA No. 873 of 2008.
With
Civil Appeal Nos. 5099, 5074, 5075, 5076, 5078, 5079, 5081, 5080,
5082, 5084, 5085, 5087, 5088, 5090, 5091, 5093, 5092, 5094, 5095, 5096,
5097, 5098, 5101, 5103, 5104, 5105, 5106, 5077, 5083, 5086, 5089, 5100
and 5102 of 2022.
Balbir Singh, ASG, Sanjay Kapur, Ms. Megha Karnwal, Arjun
Bhatia, Aashish Kumar, Ms. Akshta Joshi, Lalit Rajput, Naman Tandon,
Samarvir Singh, Prasenjeet Mohapatra, Shyam Gopal, Ms. Monica
Benjamin, Prahlad Singh, Advs. for the Appellant.
Basava Prabhu S. Patil, N. K. Mody, Subash Samvatsar, R.N.
Mishra, Sr. Advs., Ajay Choudhary, Prabudh Gaur, Mrs. Pragya Baghel,
R.N. Pareekh, Mishra Saurabh, Ms. Aarushi Singh, Sunny Choudhary,
Puneet Jain, Ms. Christi Jain, Umang Mehta, Ms. Shruti Singh, Yogit
Kamat, Mann Arora, Ms. Shipra Singh, Ms. Pratibha Jain, Nitin S.
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Tambwekar, Archit Katlana, Seshatalpa Sai Bandaru, Niraj Sharma,
Sumit Kumar Sharma, Ms. Mahima Sharma, Ms. Tanya Raizada, Mayank
Kshirsagar, Mahendra Thakur, Sudhir Shah, Balaji Srinivasan, Ms. Mrinal
Elker Mazmudar, Saurabh Singh, Abhijeet Pandove, Ms. Anuradha
Mishra, Rahul Kaushik, Hitesh Kumar Sharma, S.K. Rajora, Akhileshwar
Jha, Deepak Namdari, K. Rajeev, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Delay condoned. Substitution allowed. Abatement is set aside.
Cause title be amended accordingly.
1A. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 28.08.2014 passed by the High Court of Madhya
Pradesh at Indore in Writ Appeal No. 873 of 2008 and other connected
writ appeals, by which the Division Bench of the High Court has dismissed
the said appeals, confirming the common judgment and order dated
10.12.1998 passed by the learned Single Judge whereby the learned
Single allowed the respective writ petitions against finalisation of Scheme
No. 97 under Section 50 of the Madhya Pradesh Nagar Tatha Gram
Nivesh Adhiniyam, 1973 (hereinafter referred to as the 'Adhiniyam')
and the subsequent land acquisition proceedings undertaken by the State
of Madhya Pradesh under Sections 4 and 6 of the Land Acquisition Act,
1894 (hereinafter referred to as the 'Act, 1894'), the Indore Development
Authority has preferred the present appeals.
2. The facts leading to the present appeals in a nutshell are as
under:
The Indore Development Authority (hereinafter referred to as
the 'IDA') passed a Resolution under Section 50(1) of the Adhiniyam on
13.03.1981 declaring its intention to frame Scheme No. 97 - a residential
scheme providing for other connected land uses. For the sake of
convenience, Scheme No. 97 was divided into four parts, i.e., Part I, II,
III & IV. The declaration of intention of the said scheme was further
published in the form of public notice on 10.07.1981. Vide its order dated
24.12.1983, the State Government empowered all the Collectors and
Divisional Commissioners to act as ex-officio Deputy Secretaries of the
Department of Revenue, Government of Madhya Pradesh and ex-officio
Secretary of the said Government respectively, for disposal of the cases
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN
SAHAKARI SANSTHA MARYADIT SNEH NAGAR
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under Sections 4, 5 6 & 17 of the Act, 1894. After completing various
formalities, the IDA published Scheme No. 97 on 08.06.1984 as required
under Section 50(7) of the Adhiniyam and the Scheme was also published
in the Official Gazette on the said date.
2.1 According to IDA, the State of Madhya Pradesh in exercise
of its powers conferred under Article 166(2) & (3) of the Constitution of
India and in accordance with the Madhya Pradesh Government Rules
of Business framed by the Governor, Madhya Pradesh, delegated its
power to the District Collector to act as Under Secretary, Revenue
Department, Government of Madhya Pradesh. Vide its order dated
6.03.1987, the State Government gave powers to the Deputy Collectors
for exercising functions of the Collectors for acquisition of land in their
respective areas.
According to IDA, as per section 56 of the Adhiniyam, the IDA
started mutual negotiations with the landowners for procurement of their
land for Scheme No. 97. Since the mutual negotiations failed, the IDA
vide its letter dated 4.06.1987 moved the Collector for acquisition of the
land.
2.2 Notification under section 4 of the Act, 1894 in respect of the
land for Scheme No. 97 was published in the Official Gazette and the
notification was then also published in the two daily Hindi Newspapers
on 14.08.1987. Further, the publication was affixed on different dates
and lastly on 09.10.1987.
2.3 The Deputy Collector and Land Acquisition Officer filed its
report under section 5A of the Act, 1894 before the Collector for approval
and also submitted the notification under section 6 of the Act, 1894 for
signature of the Collector. The same was duly approved by the Collector.
2.4 The Deputy Collector filed its reports in respect of village
Tejpur Garbari and also in respect of village Pipaliyarao under section
5A of the Act, 1894 and also filed an approval order of the Collector, for
issuance of notification under section 6 of the Act, 1894. Declaration
under section 6 of the Act, 1894 was published in the Official Gazette on
7.10.1988 and the said declaration was then also published in daily
newspapers on different dates and lastly on 16.12.1988. The Collector
then submitted its report to the Commissioner under section 5A of the
Act, 1894 with the recommendation to reject the objections and to grant
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approval for issuance of notification under section 6 of the Act, 1894,
which was approved by the Commissioner vide its letter dated 6.12.1988.
2.5 After the publication of the declaration under section 6 of the
Act, 1894 and during the pendency of the land acquisition proceedings
before the Collector, some of the landowners whose lands were acquired
for Scheme No. 97 filed writ petitions before the High Court and obtained
interim orders against dispossession of their land. Some writ petitions
were filed after the declaration of the award. The Collector, Indore made
his award in respect of the acquired land on 6.03.1991. That the original
writ petitioners filed a Miscellaneous Petition before the learned Single
Judge of the High Court challenging the notifications under sections 4 &
6 of the Act, 1894 and prayed that the entire acquisition proceedings be
quashed. The original writ petitioners also prayed that Scheme No. 97
prepared by the IDA be quashed and their land be ordered to be deleted
and released therefrom. That in the year 1997, some lands were released
from Scheme No. 97. The IDA during the pendency of the writ petitions
filed a clarification regarding land release out of Scheme No. 97 pointing
out the justification. The aforesaid release was sought challenging Scheme
No. 97 on the following grounds:
(i) That the Scheme framed by the appellant under Section 50(7)
of the Adhiniyam was not implemented within three years and
therefore it stood lapsed, by virtue of Section 54 of the Adhiniyam.
(ii) That the notification issued under Section 6 was not in
accordance with law inasmuch as the objections invited under
Section 5-A were not decided by the Competent Authority. There
was also a plea of hostile discrimination inasmuch as various parcels
of lands were released from acquisition indiscriminately.
2.6 The learned Single Judge by a common judgment and order
dated 10.12.19998 allowed the respective writ petitions and quashed the
Scheme framed by the IDA as well as the land acquisition proceedings
initiated by the State Government, mainly on three grounds, namely,:-
(i) The objections invited under Section 5-A of the L.A. Act were
not decided by the Competent Authority, i.e., State Government.
(ii) There was hostile discrimination against the respondents by
the appellant and the State of Madhya Pradesh inasmuch as the
various parcels of land owned by several other persons and
societies forming part of the same scheme were released by the
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
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appellant violating the fundamental rights of the respondents as
guaranteed under Article 14 of the Constitution of India.
(iii) That in view of Section 54 of the Adhiniyam, the Scheme
lapsed as it was not implemented within three years from the date
of its publication as provided under Section 54 of the Adhiniyam.
2.7 Feeling aggrieved and dissatisfied with the common judgment
and order passed by the learned Single Judge, quashing and setting aside
the entire acquisition proceedings as well as quashing and setting aside
Scheme No. 97 on the ground that the same had lapsed in view of Section
54 of the Adhiniyam, the IDA preferred the writ appeals before the
Division Bench of the High Court. By the impugned common judgment
and order, the Division Bench of the High Court has dismissed the said
appeals, which has given rise to the present appeals.
3. Shri Balbir Singh, learned Additional Solicitor General of India,
assisted by Shri Sanjay Kapur, learned counsel, appearing on behalf of
the IDA has vehemently submitted that in the facts and circumstances
of the case, the learned Single Judge as well as the Division Bench of
the High Court have materially erred in quashing and setting aside the
entire acquisition proceedings as well as Scheme No. 97 framed under
the Adhiniyam.
3.1 It is further submitted by the learned Additional Solicitor General
that the learned Single Judge allowed the writ petitions declaring Scheme
No. 97 as illegal and invalid and quashed and set aside the entire acquisition
proceedings under the Act, 1894, mainly on three grounds, namely:-
(i) That there was no delegation of power by the State Government
with regard to Section 5-A of the Act, 1894 to Collector;
(ii) That IDA failed to take substantial steps to implement the
scheme within a period of three years from the date of final
publication as envisaged under section 54 of the Adhiniyam; and
(iii) That huge and big chunk of land, out of the total land sought to
be acquired by the Authority, has been released.
3.2 Insofar as the finding recorded by the learned Single Judge,
as confirmed by the Division Bench, that there was no delegation of
power to the Collector with respect to Section 5-A of the Act, 1894 is
concerned, learned Additional Solicitor General has submitted as under:
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(i)
That Section 5-A of the Act, 1894 provides for inviting and
hearing of objections from the landowners by the appropriate
authority and then preparation of report thereof. It is
submitted that insofar as the decision on the report by the
Appropriate Government is concerned, it is taken under
section 6 of the Act, 1894. Section 5-A merely declares
that the decision of the Appropriate Government on the
report would be final. Thus, Section 5-A does not require
any further delegation of power. The decision on the report
is required to be taken under Section 6 of the Act, 1894.
(ii)
Further, it is submitted that the State Government vide its
letter dated 22.03.1985 delegated its power to the District
Collector to act as Dy. Secretary of the Revenue
Department and to the Commissioner of the Division, to
act as Secretary of the Revenue Department, to adjudicate
matters related to land acquisition by exercising powers given
under Sections 4, 5, 6 and 17 of the Act, 1894. A bare
reading of Sections 4 to 6 of the Act, 1894 would reveal
that the power given to the District Collector and to the
Commissioner under these sections are consequential and
cannot be separated inasmuch as one section leads to
another, which finally culminates in the passing of declaration
under Section 6 of the Act, 1894.
(iii)
Further, a declaration under section 6 of the Act, 1894 could
be passed only after the report submitted under section 5A has been considered by the appropriate government. It is
respectfully contended that even though the order dated
22.03.1985 does not specifically mention Section 5-A, the
same is implied in the said order.
(iv)
Under section 5-A of the Act, the objections are required
to be considered by the Collector. Section 3(c) of the Act,
1894 defines Collector as under:
"3(c) The expression Collector means the Collector of
a District, and includes a Dy. Commissioner and any
Officer specially appointed by the appropriate Govt. to
perform the functions of a Collector under this Act."
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
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3.3 It is contended that in the present case, apart from being
specially appointed by the appropriate Government to perform the
functions of a Collector, the Authority who has considered the objections
u/s 5-A is the Collector of a District. The definition of the Collector is an
inclusive one and means the Collector of the District and includes Dy.
Commissioner as well. Further the State Government vide its circular
dated 06.03.1987 conferred power to the Dy. Collector for exercising
functions of the Collector for acquisition of land in their areas.
3.4 It is further contended that Article 166 of the Constitution of
India provides that all executive action of the Government of a State
shall be expressed to be taken in the name of the Governor and orders
and other instruments made and executed in the name of the Governor
shall be authenticated in such manner as may be specified in rules to be
made by the Governor, and the validity of an order on instruction which
is so authenticated shall not be called in question on the ground that it is
not an order or instrument made or executed by the Governor.
3.5 It is submitted that therefore the learned Single Judge as well
as the Division Bench of the High Court have materially erred in quashing
and setting aside the entire acquisition proceedings on the ground that
there was no delegation of power by the State Government with regard
to Section 5-A of the Act, 1894 to the Collector.
It is further submitted that even the learned Single Judge specifically
observed and held that except for technical irregularity, the award cannot
be declared invalid.
3.6 As regards the quashing and setting aside Scheme No. 97 on
the ground that IDA failed to take substantial steps to implement the
scheme within three years from the date of publication as per section 54
of the Adhiniyam, it is submitted that section 54 of the Adhiniyam provides
that "if the Town and Country Development Authority fails to commence
implementation of the Town Development Scheme within a period of
three years from the date of notification of the final scheme under section
50, it shall, on the expiration of the said period of three years, lapse."
3.7 It is submitted that in the present case the substantial steps
were taken within three years. That before the expiration of three years
when the negotiations failed, the State Government immediately issued
the notification under Section 4 of the Act, 1894.
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3.8 It is next submitted that in the present case declaration of
intention to prepare a town development scheme under section 50(1)
was issued on 13.03.1981; publication of the said declaration under Section
50(2) was carried out on 10.07.1981; final development scheme was
published in the Official Gazette under section 50(7) of the Adhiniyam
on 08.06.1984; the State Government was requested to acquire the land
on 4.06.1987, i.e., within three years of the final publication. It is submitted
that substantial steps taken within these three years are as under:
3.9 It is submitted that in view of the timeline set out above, the
learned Single Judge has completely erred in declaring the scheme as
having lapsed on the ground of non-implementation of the scheme under
section 54 of the Adhiniyam. It is submitted that the words "commence
implementation" occurring in Section 54 do not mean completion of
implementation of the scheme. It is submitted that the only reasonable
interpretation of Section 54 would be that some steps should be taken by
the Authority for implementation of the scheme and must have an intention
to implement the scheme.
In support of his above submission, reliance is placed on the
decision of the Madhya Pradesh High Court in the case of Sanjay Gandhi
Grih Nirman Sahakari Sanstha Maryadit v. State of M.P. & Others,
reported in AIR 1991 MP 72. It is submitted that a special leave petition
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
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against the said decision has been dismissed by this Court. It is submitted
that in the aforesaid decision, it was held as under:
"S. 54 does not appear to apply when substantial steps have been
taken within three years to implement the scheme. The Court had
also taken into consideration S. 56, 57 and 58 of the Adhiniyam
and has taken a view that the words 'fails to implement' would
means failure to take any substantial steps for the implementation
of the scheme and if no such step is taken within three years the
scheme will lapse..."
It is submitted that therefore the learned Single Judge as well as
Division Bench of the High Court have materially erred in declaring the
scheme as having lapsed on the ground of non-implementation of the
scheme under Section 54 of the Adhiniyam.
3.10 Without prejudice to the above, it is further submitted that
Section 54 of the Adhiniyam is clear in its terms that in case the
Development Authority failed to commence implementation of the scheme
(which means taking substantial steps) within the period of three years
from the date of notification, the scheme shall lapse but the acquisition
shall not. It is averred that once the land is acquired, it vests in the
Government and once it is vested in the Government, it cannot be
transferred back and it becomes the property of the Government.
3.11. As regards the finding recorded by the learned Single Judge
on hostile discrimination and quashing and setting aside the entire
acquisition proceedings on the ground that a huge and big chunk of land,
out of the total land, has been released and therefore to continue with
the acquisition with respect to rest of the land is discriminatory and violative
of Article 14 of the Constitution of India, it is submitted that the learned
Single Judge as well as the Division Bench have not properly appreciated
the grounds on which the lands were released. That the learned Single
Judge as well as the Division Bench have materially erred in not properly
appreciating the fact that the release of the land would depend on the
requirement. It is submitted that it is settled law that where the land is
acquired for establishing a residential, commercial, or industrial area and
the application for release of the land reveals that the land has been
used for the same purpose, the Government may release the land, if its
existence does not by any means hinder development as per the
notification for acquisition. Reliance is placed on the decisions of this
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Court in the cases of Rajasthan State Industrial Development and
Investment Corporation v. Subhash Sindhi Cooperative Housing
Society, Jaipur, (2013) 5 SCC 427; Union of India v. Bal Ram Singh,
1992 Supp (2) SCC 136; Sube Singh v. State of Haryana, (2001) 7
SCC 545; Jagdish Chand v. State of Haryana, (2005) 10 SCC 162;
and Dharam Pal v. State of Haryana, (2009) 2 SCC 397.
3.12 It is next contended that in the present case, the lands were
acquired for residential, park and industrial purposes. That hence the
release of land has not prejudiced or affected the integrity of the scheme.
That the end result of the release of some land was that the total area of
the scheme has become lesser to that extent but the integrity of the
scheme remains the same.
3.13 It is submitted that as such in the present case the IDA filed
a clarification giving reasons regarding land released out of Scheme No.
97. That however the learned Single Judge failed to appreciate those
reasons.
3.14 It is further submitted that the following were the reasons to
release some of the land proposed to be acquired:
a. 111.156 hectors of land were released in favour of Housing
Cooperative Societies - As stated above that this release has no
impact on the implementation of the scheme because the object
of the said housing societies and of the scheme was the same. It
may further be pointed out that the Authority/ State Govt. had
released the land only of those societies who had either developed
or started development of colony or had acquired the title to the
land or had obtained exemption u/s 20 of the Urban Land (Ceiling
& Regulation) Act, 1976 before publication of final scheme u/s 50
(7) of the Adhiniyam. It may be submitted that the Respondents
have not fulfill any of these conditions, therefore, it cannot be said
that they are similarly situated with the other Housing Societies.
In case of R-1/ Burhani Nagar Society, admittedly the
exemption u/s 20 of the Urban Land Ceiling Act was granted to
the Burhani Nagar on 30.09.1988 i.e., much after the final
declaration of the scheme u/s 50 (7) of the Adhiniyam and also
after the publication of notification u/s 4 of the Act. It is also
pertinent to mention that the said Burhani Nagar Society had
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
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purchased the land by a registered sale deed on 03.10.1988 i.e.,
after publication of notification u/s 4 of the Act.
b. 104.524 hectors of land released from the scheme - As stated
above, the land use of the said land was either agricultural or
regional park.
c. Release of land having area 46.116 hectors - Aforesaid land
was released by the Land Acquisition Officer while considering
the objections u/s 5-A of the Act because of certain reasons like
existing houses, religious places, different land use etc.,
3.15 It is further submitted by Shri Balbir Singh, learned ASG that
in the present case some of the lands have been acquired and in fact
used for the park.
3.16 Making above submissions, it is prayed that the present appeals
be allowed and the impugned common judgment and order passed by
the Division Bench dismissing the writ appeals and the common judgment
and order passed by the learned Single Judge, quashing and setting aside
the entire acquisition proceedings under the Land Acquisition Act as
well as quashing and setting aside Scheme No. 97 under section 54 of
the Adhiniyam, be quashed and set aside. It is submitted that if the
impugned judgment and order passed by the High Court is not interfered
with, the same shall affect the development of the area under the scheme,
which may be against public interest.
4. All these appeals are vehemently opposed by Shri Basava
Prabhu S. Patil, Shri Subash Samvatsar, Shri N.K. Mody, learned Senior
Advocates, Shri Puneet Jain and Shri Mayank Kshirsagar, learned counsel
appearing on behalf of the respective original writ petitioners.
4.1 Shri Punit Jain, learned counsel appearing on behalf of the
respective contesting respondents in Civil Appeal No.5099/2022 @ SLP
No. 34880/2014, Civil Appeal No. 5101/2022 @ SLP No. 34907/2014,
Civil Appeal No. 5103/2022 @ SLP No. 34879/2014 and Civil Appeal
No. 5077/2022 @ SLP 34855/2014 has vehemently submitted that in the
facts and circumstances of the case neither the learned Single Judge
nor the Division Bench of the High Court has committed any error in
quashing and setting aside the scheme(s) and acquisition proceedings
with respect to the lands in question.
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4.2 It is submitted by Shri Punit Jain, learned counsel appearing
on behalf of the original writ petitioners that the learned Single Judge as
well as the Division Bench of the High Court has struck down the scheme
as well as the acquisition, inter alia, on the following grounds: -
(i)
That the scheme has lapsed in view of section 54 of the
M.P. Nagar Tatha Gram Nivesh Adhiniyam.
(ii)
That a substantial portion of the lands forming part of the
two schemes 97(2) and 97(4) had been released and
continuing the scheme thereafter and acquiring the lands
of the other landowners (i.e., the respondents herein) is an
act of hostile discrimination being in violation of Article 14.
(iii)
That there was no delegation of the power of the State
Government under section 5A to the Commissioner and
hence, the decision for acquisition of land under section 5A
is not by a proper authority. Therefore, the acquisition is
vitiated.
4.3 It is contended that in the present case the date of publication
of final scheme under section 50(7) is 08.06.1984. No steps were taken
by the IDA to implement the scheme for approximately three years,
except engaging in so called negotiations with the original land owners
to acquire the land by mutual consent. The notification under Section 4
of the Land Acquisition Act (LA Act) was issued on 24.07.1987 and the
declaration under Section 6 of the LA Act was made on 03.10.1988. It is
submitted that the award came to be declared under Section 11 of the
LA Act on 06.03.1991. That therefore, when the final scheme No. 97
was published on 08.06.1984, the IDA was expected to "implement" the
scheme within the period of three years from the said date.
4.4 It is further contended that the word "implement" appearing
in section 54 of the Adhiniyam must be understood narrowly and must
therefore, mean full and complete implementation. It is submitted that in
any case, the word "implement" ought to be understood to mean
"substantial implementation."
4.5 It is submitted that in the present case, the learned Single
Judge did not accept the narrow view and proceeded to test the actions
of the IDA on the "substantial implementation" principle. It is submitted
that the High Court has found that sending a request for acquisition of
INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMAN
SAHAKARI SANSTHA MARYADIT SNEH NAGAR [M. R. SHAH, J.]
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land, four days before the deadline did not satisfy the "substantial
implementation" test.
4.6 It is next submitted that the word "implement" appearing in
Section 54 ought to be interpreted purposively looking at the purpose of
the said section along with the other provisions of the Adhiniyam.
4.7 It is further contended with regard to Section 54 on nonimplementation of the scheme as under: -
(a) That Section 54 must be understood as the time-cap for the
restriction provided in section 53. It is submitted that, section 53
places a restriction on land owners whose lands have been notified
to be part of a Town Development scheme to carry out
development of this land. That such restriction cannot be for an
unlimited duration and hence section 54 gives the maximum period
of three years up to which such restrictions can continue.
(b) While the restrictions under section 53 are in place, substantial
steps are required to be taken for "acquisition" of land either by
agreement or under the Land Acquisition Act, 1894.
(c) The manner of acquisition has been provided under Section
56 of the Act and Rule 19 of the then existing M.P. Nagar Tatha
Gram Nivesh Niyam, 1975, prescribes the steps to be taken in the
process of acquisition. Section 56 provides two modes of
acquisition: -
(i) Proceed to acquire by agreement, and
(ii) On failure to acquire by agreement, proceed to acquire under
the Land Acquisition Act.
Rule 19 of the 1975 Rules, read with section 56, provide as under:-
"19. Acquisition of land - (1) For the purpose of land acquisition
under section 56 of the Act, the land shall be in the Town and
Country Development Authority subject to the following terms
and conditions namely:-
(i)
Within three years from the date of publication of
the Town Development Scheme under Section 50,
the town and country development authority shall
proceed to acquire the land required for the
implementation of the scheme.
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(ii)
Where such acquisition is by agreement, the land
shall vest in the Town and Country Development
Authority on terms and conditions arrived at through
such agreement.
(iii)
On failure of agreement the Town and Country
Development Authority shall request the state
government to acquire such land under the provisions
of the Land Acquisition Act, 1894 (1 of 1894) on
payment of compensation awarded under that Act.
(iv)
Declaration shall be published under section 6 of the
Land Acquisition Act, 1894 (1 of 1894)
(v)
After such declaration the collector shall proceed to
take order for the acquisition of the land under the
said Act, and the provisions of the Act shall apply so
far as may be, apply to the acquisition of the said
land with the modification that the market value of
the said land shall be the determining factor."
Rule19(1)(i) contains a general statement enabling the authority
to "proceed to acquire" the land required for implementation of the
scheme. This, can be done in two ways - (1) acquisition by agreement
under 19(1)(ii), and on failure to acquire by agreement, (2) by compulsory
acquisition the steps necessary for which are provided under 19(1)(iii)(iv)
and (v).