Patna High Court
Doman Paswan And Ors. vs State Of Bihar And Ors. on 13 May, 1988
Equivalent citations: AIR1988PAT341, AIR 1988 PATNA 341, 1988 BBCJ 590
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, J.
1. This writ petition is directed against the notification No. P.L.A. 16 of 1981-82 Issue No. 200/Part 8 of the Patna District Gazette dt. 1st Feb., 1982 purported to be under Section 4 of the Land Acquisition Act, 1894 whereby and whereunder it was declared that the lands as mentioned therein are to be acquired for public purposes and the order dt. 27th Aug., 1982 passed by the Additional Collector, Patna (respondent 3) as contained in Annexure-1 to the writ petition whereby and whereunder the objections filed by the petitioners under Section 5-A of the said Act was rejected.
2. The facts of the case lie in a very narrow compass.
3. It is admitted that the respondent 5 issued a requisition to the State of Bihar for compulsory acquisition of the lands in question situate in village Rukunpura, Police Station, Danapur, which are located in the Patna Danapur Road and adjacent to East of Patna Danapur Canal. It is stated that the lands in question are within the green belt as set out by the Patna Improvement Trust in its master plan.
4-5. The petitioners have asserted that out of 2700 feet wide strip of land from east to west situated in green belt and is adjoining to east of Patna Danapur Canal on both sides of Patna Danapur road, a strip of land measuring approximately 13300 feet width and situated on the north Patna Danapur road has already been notified for compulsory acquisition under the Land Acquisition Act several years ago. However, in spite thereof the State of Bihar issued the aforementioned notification as contained in Annexure-2 to the writ petition purported to be under Section 4 of the Land Acquisition Act, 1894. Thereafter, individual notices were served upon the petitioners between 20th April, 1982 to 24th April, 1982. Some of the notices are contained in Annexures 4, 4/1, 4/2 and 4/3 respectively.
6. The petitioner, thereafter, filed objections in terms of Section 5-A of the said Land Acquisition Act which are contained in Annexure-5 series. In the said objections the petitioners pointed out that they are Harijans and some of them would become landless if the said acquisition is carried out. In the said proceedings an inspection was made by the respondent 4 on 17th July, 1982. The respondent No. 4 submitted a tentative report mentioning therein that the contentions raised by the petitioners were such which require further enquiry. The said interim report dt. 17th July, 1982 is contained in Annexure-6 to the writ petition. It appears that respondent 5 also submitted comments on the objections raised by the petitioners as contained in Annexure-7 to the writ petition.
7. The respondent 3, however, without permitting respondent 4 to conduct a further enquiry in the matter by an order dt. 27th Aug., 1982 rejected all the objections. The said order is contained in Annexure- 1 to the writ petition.
8. Mr. Tarkeshwar Dayal, the learned senior counsel appearing on behalf of the petitioners has raised a short question. According to him the area in question having been declared to be within the 'green area' no construction is permissible thereon and as such the purposes for which the land is sought to be acquired meaning thereby construction of houses by the respondents-corporation cannot be carried out and in that view of the matter the notification under Section 4 of the said Land Acquisition Act had been issued mala fide and/or for unauthorised purposes.
9. In this case a counter-affidavit has been filed on behalf of the respondent 5. In the said counter-affidavit it has not been denied that the area in question has been shown in the master plan to be a green area, but it has been contended that the said master plan is under revision as a result whereof it is proposed to reduce the width of the green belt. It has further been contended that the petitioners themselves are seeking permission to sell the land in question and as such they are violating the scheme and master plan approved by the State Government and, therefore, they have no right to challenge the legality or otherwise of the acquisition made by the State Government for the purpose of facilitating the schemes of the housing colonies to provide accommodation to different sections of the society.
10. The Bihar Town Planning and Improvement Trust Act, 1951 (hereinafter to be referred to as the Improvement Trust Act) was enacted by the legislature and the same came into force with effect from 28th Nov., 1951 when the President gave his assent. The Improvement Trust Act was enacted for the purpose of constituting improvement trust for different areas by the State of Bihar.
In terms of Section 3 of the Improvement Trust Act, the Patna Improvement Trust was constituted by the respondent No. 1. The aforementioned trust, in terms of Section 33 of the Improvement Trust Act is required to prepare subject to the control of the State Government, a master plan for the development and improvement of the area for which it has been constituted keeping some objective as enumerated therein in view. One of the objectives mentioned in Section 33 of said Improvement Trust Act is to make provisions for metropolitan green belts. Under Sub-section (3)of Section 33 of the Improvement Trust Act, a master plan is to include maps and such descriptive matters as may be necessary to illustrate any proposal of schemes with such degree of details and the same may in particular inter alia define the sites of proposed roads, public and other buildings and works, airfields, parks, pleasure grounds, graveyards, burning ghat, nature reserves and other open spaces, or allocate areas of land for use for agricultural, residential, industrial or other purposes of any class specified in the master plan.
In terms of the said provisions the State was empowered also to make compulsory acquisition of the land designated by the planning authority or any public utility agencies for the purpose of any of their functions.
11. Section 34 of the Improvement Trust Act provided for matters to be provided by improvement schemes and type of such schemes. Under Sub-section (2) of Section 34 of the Improvement Trust Act, improvement scheme framed within the framework of the master plan is to be one of the types mentioned therein or a combination of any two or more of such types or of any special features thereof as enumerated in different clauses therein.
12. It stands admitted that pursuant to the aforementioned statutory provisions the Patna Improvement Trust prepared a master plan for planned development of Patna, which was published in March, 1962. The same inter alia provides for green belt in the town which reads as follows : --
"To define the proposed urban limits and also to restrict unbriddled urban sprawl, a green belt is proposed all around the city, excepting along its north, where the river Ganga automatically arrests development in that direction. No building activities is proposed to be permitted in this green belt, but only restricted types of agricultural operations may be allowed."
The same further provided for keeping lands for agriculture and orchard purposes.
13. The State of Bihar thereafter enacted Bihar Regional Development Authority Act, 1974 (Bihar Act 40 of 1982) (hereinafter to be referred to as the Development Authority Act), which received the assent of the President on 23-1-1982 and published in the Bihar Gazette dated 25-1-1982.
14. By reason of Section 93 of the Development Authority Act, it was provided that from the date of the constitution of the authority the Improvement Trust Act shall cease to have effect within the area notified under Sub-section (2) of Section 1, save as provided under Section 30 thereof.
15. However, in terms of Clause (b) of Sub-section (2) of Section 93 of the Development Authority Act it was provided that notwithstanding the provision contained in Sub-section (1) of Section 93 thereof anything done or any action taken including any scheme made under the Improvement Trust Act shall so far as it is not inconsistent with the provisions of the Development Authority Act shall continue to be in force and be deemed to have been done or taken under the provisions thereof unless and until the same is superseded by anything done or any action taken under the said provision.
16. At this juncture it is necessary to take into consideration the provisions of the Development Authority Act.
Chapter IV of the Development Authority Act deals with Regional Plan, Master Plan and Zonal Development Plan.
Sections 17 and 18 of the Development Authority Act deal with Civil Survey and Master Plan and contents of Master Plan.
From Clause (c) of Section 18 of the Development Authority Act the plan is to inter alia provide matters relating to proposals of designation of areas for open spaces, play grounds, stadium, zoological garden, green belts nature reserves, sanctuaries and dairies.
Section 23 of the Development Authority Act provides for restriction on change of use of land or development thereof after the publication of draft plan.
17. Before me, Mr. Dayal produced a draft master plan for Patna which was published in terms of Sections 17 and 18 of the Development Authority Act. The said plan provides for delineation of development areas, which is in the following terms : --
"Development area of the first master plan was bounded by Patna canal in the west P.M.G. boundary in the east, Ganga in the north and the proposed new Patna byepass in the south. The foregoing plan proposes to extend the development area slightly in the west up to Dinapur-Khagaul Road and extensively in the south up to 2 Kms. south of the present new Patna bypass to meet the spatial requirements for new residential areas, industrial and commercial establishments and regional needs of an integrated rail-road transportation system. This excludes 1 K. M. wide green belt proposed on the fringes of the city flanking outwardly the proposed third byepass running along with entire length of the city in the south.
For the purposes of development according to the present plan, the city has been divided into 4 districts -- Eastern, Western, Southern and Central as against the 3 in the 1st Master Plan. Population projections show that the southern zone would share more than 50% of additional number of persons (6 lacs) of the city's projected 20 lacs population, excluding those who are already living (8 lacs) in the city presently (1981)."
18. In the said Master Plan provisions have been made for agricultural land to the extent of 7,753.16 acres, Orchard and green land to the extent of 279.51 acres and public space to the extent of 389.08 acres. In the said plan the column of proposed land use pattern, at serial No. 7 provides for a green belt to the extent of 517 acres.
19. It is also an admitted fact that the town of Patna is one of the towns situate in the State of Bihar, which finds place in Schedule 1 appended to the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter to be referred as the Act).
Section 2(h) of the Act defines 'masterplan', which reads as follows : --
" 'Master plan', in relation to an area within an urban agglomeration or any part thereof, means the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out."
Section 2(o) of the Act defines 'urban land, which reads as follows : --
"Urban land means-- (i) Any land situated within the limits of an urban agglomeration and referred to as such in the master plan, or (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture."
Section 2(p) of the Act defines 'urbanisable land', which reads as follows : --
"Urbanisable land means land situated within an urban agglomeration, but not being urban land."
Section 2(q) defines 'vacant land', which reads as follows : --
"Vacant land means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include-
(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated;
(ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and
(iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building;
Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live-stock on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purpose of this clause."
20. From the facts as stated hereinbefore, it is absolutely clear that at all material tunes there existed a 'master plan' for the town of Patna.
In view of the pleadings of the parties, as referred to hereinbefore, it is also evident that a draft master plan in respect of the town of Patna as published still survives as admittedly no other master plan has come into existence.
It is also clear that once a master plan comes into existence the same can be altered or amended only in accordance with the provisions of Section 24 of the Development Authority Act. As is evident from the counter-affidavit that the master plan is under revision and the authority is only contemplating to reduce the areas of the green belt.
21. In view of the admitted position that the lands in question, which are subject-matter of the notification under Section 4 of the Land Acquisition Act as contained in Annexure 2 to the writ petition are within the green belt as shown in the master plan, the lands, therefore, cannot be utilised for any other purpose as is evident from Section 23 of the Development Authority Act.
22. Sub-section (2) of Section 23 of the Development Authority Act provides for non obstante clause, as a result whereof notwithstanding anything contained in any law for the time being in force in law any permission for use any land in terms of Sub-section (1) thereof cannot be granted otherwise than in conformity with the provisions of the plan. .
Chapter VI of the Development Authority Act provides for development of land and building control.
Section 35 of the Development Authority Act provides for restrictions upon all persons to erect or commence to erect only building or make any addition or alteration to any building except with the previous sanction of the Vice-Chairman, and in accordance with this chapter and the regulations made thereunder.
Section 36 of the Development Authority Act provides that every person including local authority or body corporate constituted under any law for the time being in force is required to apply for sanction for erection of building etc.
23. The aforementioned restrictions contained in the Development Authority Act are mandatory in character. As seen hereinbefore, Sub-section (2) of Section 23 of the Development Authority Act put a complete embargo upon the authorities to grant sanction except in accordance with the master plan. It is, therefore, evident that the lands in question which are included in 'the green belt' have got to be kept as such and be treated as a vacant land within the meaning of the provisions of Section 2(q)(i) of the Act.
Reference in this connection may be made to State of Gujarat v. Parshottamdas Ramdas Patel, (1988) 1 SCC 132 : (AIR 1988 SC 220).
24. In the said decision it has been held that in order to exclude the land from the definition of vacant land it should be shown that it was a land on which construction of a building was not permissible under the building regulation in force in the area in which such land was constituted.
25. In the instant case, it is clear that no building can be constructed on the lands in question, which is within the green belt area in terms of the provisions of the Development Authority Act, as referred to hereinbefore.
26. In T. Damodhar Rao v. Spl. Officer, Municipal Corporation of Hyderabad, AIR 1987 Andh Pra 171, it has been held that if any land which was earmarked in the plan for recreational park, no portion thereof can be utilised for construction of residential houses; even if the same had been acquired for a public purpose i.e. building houses by the Life Insurance Corporation of India and others.
In the said decision it has been held as follows : --
"The enjoyment of life and its attainment and fulfilment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature's gifts without which life cannot be enjoyed There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Article 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoilation should also be regarded as amounting to violation of Article 21 of the Constitution."
In the said decision it has further been held as follows : --
"The very purpose of preparing and publishing the development plan is to maintain an environmental balance. The object of reserving certain area as recreational zone would be utterly defeated if private owners of the land in that area are permitted to build residential houses. The attempt of the Life Insurance Corporation to build house in this area is contrary to law and also contrary to Article 21 of the Constitution."
27. The question, therefore, which arises for consideration as to whether the land in question should be permitted to be acquired in spite of the fact that the purpose wherefor the same is going to be acquired cannot be achieved ?
28. In my opinion, the answer must be in negative. There is absolutely no doubt that the State is entitled to issue a notification in terms of Section 4 of the Land Acquisition Act, if it is satisfied that the same is needed or is likely to be needed for any public purpose.
There is also no doubt that acquisition of land for the purpose of giving effect to the housing scheme of a co-operative society comes within the purview of the definition of public purpose as contained in Section 3(f) of the Land Acquisition Act as amended by the Acquisition (Amendment) Act, 1984 (Act No. 4 of 1984).
29. It is, however, evident from the facts as mentioned hereinbefore that the lands in question are sought to be acquired not for the purpose of giving effect to the provisions of the Development Authority Act or Urban Land (Ceiling and Acquisition) Act but for permitting housing scheme of the respondent 5, which has been adopted by it for the different sections of the societies.
30. The above aspects of the matter unfortunately has not been fully appreciated by the respondent 3 in his order dt. 27-8-1982 as contained in Annexure 1 to the writ petition. The respondent 3 in his order in relation to the aforementioned area has merely stated that various landholders are constructing houses on the land in question. It has further been held that the respondent 5 has given a suggestion that the green belt as shown in the master plan should be kept as green belt.
31. It is, therefore, incumbent upon the respondent 3 to give a detailed finding as to whether the entire area in question, which is sought to be acquired comes within the purview of green belt or not. There cannot be any doubt that the respondent 5 would be entitled to construct houses only in terms of the provisions of the Development Authority Act and provided the same is in time with the master plan.
32. It appears that the respondent 3 in his order while passing the impugned order as contained in Annexure 1 to the writ petition was swayed by the fact that the petitioners themselves intend to construct houses thereon and further they intend to sell the said lands at a higher price. In my opinion, the same was not a relevant consideration for the purpose of disposal of objections under Section 5A of the Land Acquisition Act. The conduct of the persons whose lands are going to be acquised is wholly irrelevant for determining the objections under Section 5A of the Land Acquisition Act.
If any of the petitioners has violated the provisions of the Development Authority Act or for that matter provisions of some other Act, action may be taken against them in terms of the provisions thereof; but in the instant case, the moot question as to whether the entire lands acquired falls within the metropolitan green belt and if so whether the respondent 5 can carry out its object causing any detriment to the master plan and/or in furtherance thereof ? The respondent 3 has evidently did not pose unto him the relevant question nor did he make any attempt to acquaint himself with the relevant fact. Evidently in not doing so, he misdirected himself in law.
Reference in this connection may be made to (1976) 3 All ER 665 at p. 669, wherein the following observations were made : --
"Here it appears that the authority passing the impugned order did not ask itself the right question and take reasonable step to acquaint itself with the relevant information to enable it to answer it correctly. This amounts to misdirection in law."
33. Taking into consideration all aspects of the matter I am of the view that the respondent 3 should consider the objections of the petitioners afresh.
34. In the result, this writ petition is allowed and the order dt. 27th Aug., 1982, as contained in Annexure 1 to the writ petition is hereby quashed and the respondent 3 is directed to pass a fresh order in accordance with law.
35. In the facts and circumstances of the case, there will, however, be no order as to costs.