Madhya Pradesh High Court
Ashok Kumar Goyal vs The State Of Madhya Pradesh on 15 December, 2017
Bench: Sanjay Yadav, S.K. Awasthi
1 Writ Appeal.1084/2017
&
Writ Appeal.1085/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
WRIT APPEAL NO.1084 OF 2017
Ashok Kumar Goyal and another
Vs.
State of Madhya Pradesh and others
&
WRIT APPEAL NO.1085 OF 2017
Ashok Kumar Goyal and another
Vs.
State of Madhya Pradesh and others
*********************
Shri R.N. Singh, Shri V.K. Bhardwaj, learned Senior
Counsel with Shri Arpan J. Pawar, Shri Akshay Pawar,
Shri Sajeev Jain & Shri Anand V. Bhardwaj, learned
counsel for the appellants.
Shri Harish Dixit, learned Government Advocate, for
respondent No.1/State.
Shri Raghvendra Dixit, learned counsel for respondents
No.2 and 3.
*********************
Whether approved for reporting : Yes/No
2 Writ Appeal.1084/2017
&
Writ Appeal.1085/2017
ORDER
(15/12/2017) Per Justice Sanjay Yadav:
This order shall lead to final disposal of Writ Appeal No.1084/2017 and Writ Appeal No.1085/2017.
(2) These writ appeals under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 are directed against the order dated 06.11.2017 passed in Writ Petition No.7861/2011 and Writ Petition No.7862/2011 wherein as noted by learned Single Judge that the controversy and the issue involved being common, one relating to Scheme No.2A and the another Scheme No.5 of the Gwalior Development Authority.
(3) The genesis lies in the order dated 14.11.2011 whereby the Chief Executive Officer, Gwalior Development Authority called upon the respective petitioners to hand over the possession of land situated near Gandhi Road at village Gospura bearing Survey Nos.1660 (0.585 hect.), 1661 (0.784 hect.), 1662 (0.428 hect.), 1664 (0.428 hect.); 2159 min. (1.055 hect.), 2161 min (1.494 hect.), 2164 (0.021 hect.), 2165 min (0.282 hect.), 2166 (0.031 hect.) falling within Scheme No.2A.
And land bearing Survey Nos. 2167 (0.397 hect.), 2168 (0.031 hect.), 2169 (0.167 hect.), 2172 (0.251 hect.) forming part of Survey No.5, on the ground that the land having been vested in the Town Improvement Trust under Section 71 of the Town Improvement Trust Act 1960 (for brevity "the 1960 Act") and the Gwalior Development Authority, its successor and that any transaction by private persons was void.
3 Writ Appeal.1084/2017& Writ Appeal.1085/2017 (4) Learned Single Judge taking note of the fact that the land in question were notified for the purpose of housing Scheme No.2A and 5 by the Town Improvement Trust vide notification dated 06.09.1963 and with final notification issued on 30.12.1966 under Section 71(1) of 1960 Act the land vested in the Trust free of any encumbrance. And further recording the finding that the then owners of respective land had given their consent in response to notice under Section 48 of 1960 Act; and the proceedings having attained finality in 1963, sale-deeds executed subsequently in favour of respective petitioners did not create any right in them and were not the owner of the property in question. Learned Single Judge observed:-
"15- Town Improvement Trust Gwalior which happens to be the predecessor of Gwalior Development Authority floated a scheme No.2-A behind Mela Ground, Gwalior for development of the area as per the provisions of Act of 1960. At that time, the land in question and the survey numbers which are mentioned in the impugned orders were admittedly under the right, title, interest and possession of some other persons. Those owners in response to the notice under Section 48 of the Act of 1960 appeared before the trust and gave their consent for acquisition of the land. It appears that they agreed to give their land to the Trust and as natural corollary said owners might have received the compensation.
16- After the proceedings were over, land has been disposed of by the said owners to the petitioners and their predecessor. Admittedly, the proceedings under Section 48 of the Act of 1960 have been initiated and concluded in 1963 and the sale deeds which have been annexed by the petitioners as Annexure P/2 are of 1968 and 1969, therefore, it is clear 4 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 that petitioners were not land owners at the time of publication of scheme (preliminary notification as well as final notification) as well as at the time of acquisition. Once the petitioners were not the land owners of the said property then they cannot claim any right, title or interest over the land in question after fifty years of acquisition. Even if erstwhile owners of the land in question have disposed of the land in question after the declaration/publication of scheme even then the petitioners have no right because the petitioners never participated in the acquisition proceedings initiated under Section 48 of the Act of 1960 by the trust and never submitted their objections, therefore, at this belated stage, petitioners cannot claim any right, title or interest in any manner over survey numbers as mentioned in the impugned notice.
18- It appears that original owner at no point of time either objected the acquisition proceeding or challenged the award, therefore, finality attached to the proceedings cannot be permitted to be reagitated at the instance of petitioners in this writ petition."
(5) Learned Single Judge further negativing the claim on behalf of the petitioners on the basis of the agreement entered with between them and the then Chairman of the Trust on 26/05/1970 and 30/05/1970, found the same to be in contravention to the statutory provisions as would create any right much less vested right in the petitioners to question the action of respondent.
(6) These aspects are borne out from the findings in paragraphs 15, 23 and 24 of the judgment. These findings are being questioned by the petitioners vide these two Writ Appeals.
5 Writ Appeal.1084/2017& Writ Appeal.1085/2017 (7) Before dwelling thereon certain provisions of 1960 Act and of Nagar Tatha Gram Nivesh Adhiniyam 1973 and facts borne out from record are taken note of.
(8) The Madhya Pradesh Town Improvement Trust Act 1960 is an Act to consolidate and amend the law relating to the establishment of Improvement Trusts for the purpose of making and executing Town Improvement Schemes in certain towns of Madhya Pradesh. It received the assent of the President on 31/03/1961, published in Madhya Pradesh Gazette (Extraordinary) on 12.04.1961. As per sub-section (3) of Section 1, the Act came into force for Gwalior w.e.f.12/04/1961. That Clause (o) of Section 3 of 1960 Act defines "Scheme" "includes a plan relating to a town planning or town improvement scheme." That Clause (s) of Section 3 defined "trust" to mean "the Improvement Trust constituted under Section 4 of 1960 Act. That the "trust area" as defined under Section 3(t) means the area comprised within the limits of a town for which a trust has been constituted.
(9) Chapter IV lays down the provisions relating to Improvement Scheme, Classification of Improvement Schemes; procedure to be followed in framing an improvement scheme; powers and duties of the Trust in executing the improvement schemes; facilities for movement of population; surveys; power of entry, which included the provision for accommodation for any class of inhabitants [Section 30(j)]; and a housing accommodation Scheme [Section 31(g)].
(10) Section 46 of the 1960 Act makes provision regarding preparation, publication and transmission of 6 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 notice as to improvement scheme and supply of documents to applicants, it stipulates:
"46. Preparation, publication and transmission of notice as to improvement scheme and supply of documents to applicants.-
(1) When any improvement scheme has been framed, the Trust shall prepare a notice stating -
(a) the fact that the scheme has been framed;
(b) the boundaries of the area
comprised in the scheme; and
(c) the place or places at which-
(i) particulars of the scheme;
(ii) a map of the area comprised in
the scheme;
(iii) a statement of the land which it is proposed to acquire; and
(iv) a statement of the land in regard to which it is proposed to recover a betterment contribution, may be seen during office hours; (2) The Trust shall -
(a) cause the said notice to be published weekly for three consecutive weeks in the Gazette and in a local newspaper or newspapers, if any, with a statement of the period within which objections will be received; and
(b) send a copy of the notice to the President of the local authority.7 Writ Appeal.1084/2017
& Writ Appeal.1085/2017 (3) The Chairman shall cause copies or extracts of all documents referred in clause (c) of sub-section (1) to be delivered to any applicant on payment of such fees as may be prescribed by regulation.
(11) That Section 48 of the 1960 Act envisages notice of proposed acquisition of land, it mandates:
"48. Notice of proposed acquisition of land.-
(1) During the thirty days next following the first day on which any notice is published under Section 46 in respect of any improvement scheme, the Trust shall serve a notice on-
(a) Every person whose name appears in the assessment list of the local authority as being primarily liable to pay property tax assessed upon any building or land which it is proposed to acquire in executing the scheme, or in regard to which it proposes to recover a betterment contribution; and
(b) The occupier (who need not be named) of each premises entered in the assessment list of the local authority which the Trust purposes to acquire to executing the scheme:
Provided that where no property tax is levied such notice shall be served upon every owner and occupier (who need not be named) of such building or land.
(2) Such notice shall-
(a) state that the Trust proposes to acquire such land or to recover such betterment contribution for the purposes of carrying out an improvement scheme; and
(b) require such person, if he dissents from such acquisition or from the 8 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 recovery of such betterment contribution, to state his reasons in writing within a period of sixty days from the service of the notice.
(3) Every such notice shall be signed by, or by the order of, the Chairman.
(12) Section 50 lays down:
"50. Abandonment of improvement scheme or application to State Government to sanction it.-(1) After the expiry of the periods respectively prescribed under clause (a) of sub-section (2) of Section 46, by Section 47, and by clause (b) of sub- section (2) of Section 48, in respect of any improvement scheme, the Trust shall consider any objection, representation or statement of dissent received thereunder, and after giving reasonable opportunity of being heard to all persons making any objection, representation or dissent, who may desire to be heard, the Trust may either abandon the scheme or apply to the State Government to sanction the scheme with such modifications, if any, as the Trust may consider necessary. (2) Every application submitted under sub-
section (1) shall be accompanied by-
(a) a description of, and full particulars relating to, the scheme, and complete plans and estimates of the cost of executing the scheme;
(b) a statement of objections, if any, received under Section 46;
(c) any representation received under Section 47;
(d) a statement of the reasons for any modifications made in the scheme as originally framed;
(e) a list of the names of all persons, if any, who have dissented under clause (b) 9 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 of sub-section (2) of Section 48 from the proposed acquisition of their land or from the proposed recovery of betterment contribution and a statement of the reasons given for such dissent;
(f) a statement of the arrangement made or proposed by the Trust for the re-
housing of persons likely to be displaced by the execution of the scheme, for whom re-housing provision is required; and
(g) a description of the street, square, park, open space or other land, or any part thereof, which is the property of the Government and managed by the Central Government or the State Government, required for the scheme.
(3) When any application has been submitted to the State Government under sub-
section (1), the Trust shall cause notice of the fact to be published for two consecutive weeks in the Gazette and in a local newspaper or newspapers, if any, as may be considered necessary."
(13) Section 51 empowers the State government to accord sanction with or without notification or it may refuse the sanction, or may return for reconsideration. If the State Government accords its sanction, Section 52 envisages vesting of land in the Trust. Section 51 and 52 stipulate:
"51. Power to sanction, reject or return improvement scheme.-(1) the State Government may sanction, either with or without modification, or may refuse to sanction, or may return for reconsideration, any improvement scheme submitted to it under Section 50.
(2) If a scheme returned for 10 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 reconsideration under sub-section (1) is modified by the Trust it shall be republished in accordance with Section 46 -
(a) in every case in which the modification affects the boundaries of the area comprised in the scheme, or involves the acquisition of any land not previously proposed to be acquired; and
(b) in every other case, unless the modification is, in the opinion of the State Government, not of sufficient importance to require republication.
52. Notification of sanction of improvement scheme and order regarding vesting of property in the Trust.- (1) Whenever the State Government sanctions an improvement scheme, it -
(a) shall announce the fact by notification and except in the case of a deferred street scheme, development scheme, or town expansion scheme, the Trust shall forthwith proceed to execute the same; and
(b) may order that any street, square, park, open space or other land, or any other part thereof, which is the property of the Government and managed by the Central Government or the State Government shall, subject to such condition as it may impose, vest in the Trust for the purpose of the scheme.
(2) The publication of a notification under sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned."
(14) Section 60 of 1960 Act empowers the Trust;
11 Writ Appeal.1084/2017& Writ Appeal.1085/2017 subject to the Rules framed under the Act to enter into and perform all such contracts as it may consider necessary or expedient for carrying out any of the purposes of the Act. Section 64 makes provision regarding settlement of disputes by Tribunal.
(15) That Chapter V of 1960 Act deals with acquisition and disposal of land. Section 66 stipulates that under chapter V a person shall be deemed to be interested in land who would be entitled to claim compensation if the land were acquired under the 1960 Act. Section 68 of 1960 Act makes provision regarding notice of acquisition of land, in the following terms:
"68. Notice of acquisition of land.-
(1) If in the opinion of the Trust any land is required for the purposes of any scheme sanctioned by the State Government under Section 51, the Trust shall by a notice published in the Gazette and in such other manner may be prescribed, signify it intention to acquire such land. Such notice shall specify the place where and the hours during with the maps and specifications of the land proposed to be acquired may be inspected.
(2) The owner of the land which has been notified under sub-section (1) or any other person interested therein may object to the acquisition of such land within 80 days after the publication of the notice in the Gazette.
(3) Every objection under sub-section (2) shall be made to the Trust in writing and the Trust shall give the objector an opportunity of being heard in person or by a duly authorised agent or pleader and shall after hearing all such objections and making such further inquiry, if may, as may be necessary, take such decision as it may 12 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 deem fit."
(16) Section 69 and 70 relates to Trust applying to the State Government for sanction to acquire land and the State Government according such sanction.
(17) Section 71 of 1960 Act provides for notification of acquisition and vesting of land in Trust. It stipulates:
"71. Notification of acquisition and vesting of land in Trust. (1)After the acquisition of land is sanctioned by the State Government under Section 70 the Trust may acquire such land by publishing in the Gazette a notice stating that it had decided to acquire the land and has obtained the sanction of the State Government for the acquisition thereof. (2) When a notice under sub-section (1) is published in the Gazette the land shall, on and from the date of such publication, vest absolutely in the Trust free from all encumbrance.
(3) Where any land is vested in the Trust under sub-section (2), the Trust may be notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the Trust or any person duly authorised by it in this behalf within thirty days of the service of the notice.
(4) If any person refuses or fails to comply with an order made under sub-
section (3), the Trust may take possession of the land and may for that purpose cause to be used such force as may be necessary."
(18) That Section 72, 73 and 78 of 1960 Act makes a provision regarding compensation, Constitution of Tribunal and procedure for determining compensation 13 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 and power of the Tribunal.
(19) That, with the enactment of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973, which received the assent of the President on 16/04/1973, published in Madhya Pradesh Gazette (Extraordinary) dated 26/04/1973, the following consequences ensued vide Section 87(1)(C)(i)(ii)(iii), (iii-a), (iv), (v):
"87. Repeal, savings and construction of references.- (1) As from the date of-
(c) the establishment of the Town and Country Development Authority for any area the following consequences shall ensue in relation to that, area, namely:-
(i) the Madhya Pradesh Town Improvement Trust Act, 1960 (No. 14 of 1961), shall stand repealed in its application to the said area,
(ii) the Town Improvement Trust functioning within the jurisdiction of the Town and Country Development Authority so established shall stand dissolved and any Town Improvement scheme prepared under the said Act, shall in so far as it is not inconsistent with the provisions of this Act be deemed to have been prepared under this Act,
(iii) all assets and liabilities of the town Improvement Trusts shall belong to and be deemed to be the assets and liabilities of the Town and Country Development Authority established in place of such Town Improvement Trust under section 38;
(iii-a) all grants and contributions payable to the Town Improvement Trust shall continue to be payable to the Town and Country Development Authority established in place of such Town 14 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 Improvement Trust under section 38.
(iv) all employees belonging to or under the control of the Town Improvement Trust referred to in sub-clause (ii) immediately before the date aforesaid shall be deemed to be the employees of the Town and Country Development Authority established for such area under section 38:
Provided that the terms and conditions of service of such employees shall be the same until altered by the Town and Country Development Authority with the previous sanction of the state Government:
Provided further that no sanction under the foregoing proviso shall be accorded by the State Government until the person affected thereby is given a reasonable opportunity of being heard;
(v) all records and papers belonging to the Town Improvement Trusts referred to in sub-clause (ii) shall vest in and be transferred to the Town and country Development Authority established in its place under Section 38."
(20) That, Gwalior Development Authority came to be established w.e.f. 05.10.1979.
(21) The Act of 1973 as evident from the recital was brought in vogue to make provision for planning and development and use of land; to make better provision for the preparation of development plans and zoning plans with a view to ensuring town planning schemes are made in a proper manner and their execution is made effective, to constitute Town and Country Planning Authority for Proper implementation of town and country development plan, to provide for the development and administration of special areas 15 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 through Special Area Development authority, to make provision for the compulsory acquisition of land required for the purpose of the development plans and for purposes connected therewith.
(22) That Chapter VII of the Act of 1973 makes provision as to Town and Country Development Authority; Section 50 empowers such Authority to declare its intention to prepare a town development scheme. This section contains stipulations within which period the scheme has to be put to execution and the consequences thereof. It is, however, pertinent to note the time constraint is not applicable in case where the scheme has been brought in vogue and is in progress with ongoing process. Thus, the applicability of Section 54 of the Act of 1973 which stipulates that "if the Town and Country Development Authority fails to implement the town development scheme within a period of three years from the date of publication of the final scheme under section 50 it shall, on the expiration of the said period of three years, lapse" gets excluded once the scheme is implemented [since deleted by the M.P. Act 1 of 2012 w.e.f. 3-1-2012 (applicable to M.P. Only)].
(23) Now, coming to the facts of the case.
(24) It is borne out from cogent material documents on record that the Trust in exercise of its powers under Section 46 vide notification published in Madhya Pradesh Gazette Part 3 (1) dated 06/09/1963, 20/09/1963 and 27/09/1963 Scheme 2A over 57 Bigha 2 Biswa and notification published in Madhya Pradesh Gazette Part 3(1) dated 20/09/1963, 27/09/1963 and 04/10/1963 of 150 Bigha 19 Biswa for Scheme No.5, 16 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 including the land which are subject matter of these writ appeals.
(25) That after receiving sanction from the State Government under Section 51, the land in question got vested vide notification published in Madhya Pradesh Gazette Part 3(1) dated 28/10/1966 and 30/12/1966 in the following terms:
^^Ø- 25A 66& loZ&LkEcfU/kr Hkw&Lokfe;ksa rFkk Hkwfe esa fgr j[kusokys O;fDr;ksa ds lwpukFkZ e/;izns'k Vkmu bEIzkwoesaV VªLV ,DV 1960 dh /kkjk 71¼1½ ds vUrxZr izdkf'kr fd;k tkrk gS fd Xokfy;j lq/kkj U;kl] Xokfy;j dh xka/kh jksM ds lehi dh Hkwfe fodkl ckcr x`g&LFkku ;kstuk uacj 5] ftldh igyh foKfIr e/;izns'k jkti=] Hkkx 3¼1½] fnukad 20 flrEcj] 27 flrEcj o 4 vDVwcj 1963 esa izdkf'kr gks pqdh gS rFkk e/;izns'k 'kklu }kjk mDr fo/kku dh /kkjk 52 ds vURkxZr Lohdkj dh xbZ gS] mDr ;kstuk gsrq 150 ch?kk 19 fcLok Hkwfe LkEiknu djus dh foKfIr mDr fo/kku dh /kkjk 68¼1½ ds vUrxZr e/;izns'k jkti=] fnukad 18 ekPkZ 1966] Hkkx 3¼1½ esa izdkf'kr dh tk pqdh gS ,oa mDr Hkwfe U;kl }kjk vf/kizkIr djus dh 'kklu Lohd`fr mDr fo/kku dh /kkjk 70 ds vUrxZr izkIr dj yh xbZ gSA vr% Xokfy;j lq/kkj U;kl] Xokfy;j us mDr Hkwfe] ftldh prq%lhek /kkjk 46 ds vUrxZr izdkf'kr foKfIRk esa nh tk pqdh gS] dks vfHkizkIr djus dk fu.kZ; fd;k gS] rnuqlkj bl foKfIr }kjk loZ&lEcfU/kr O;fDr;ksa ds lwpukFkZ izdkf'kr fd;k tkrk gS fd mDr Hkwfe bl foKfIr ds e/;izns'k jkti= esa izdkf'kr gksus ds fnukad ls /kkjk 71¼2½ ds vuqlkj leLr _.k&Hkkj ls eqDr Xokfy;j lq/kkj U;kl] Xokfy;j esa osf"Br gks tk;sxhA^^ ^^^Ø- 31A 66& loZ&LkEcfU/kr Hkw&Lokfe;ksa rFkk Hkwfe esa fgr j[kusokys O;fDr;ksa ds lwpukFkZ e/;izns'k Vkmu bEIzkwoesaV VªLV ,DV 1960 dh /kkjk 71¼1½ ds vUrxZr izdkf'kr fd;k tkrk gS fd Xokfy;j lq/kkj U;kl] Xokfy;j dh esyk Hkwfe ls layXu Hkwfe ds fodkl ckcr x`g LFkku ;kstuk ua- 2&, ftldh igyh foKfIRk /kkjk 46 ds vUrxZr e/;izns'k jkti=] Hkkx 3¼1½] fnukad 6 flrEcj 1963] 20 flrEcj 1963 o 27 flrEcj 1963 esa izdkf'kr gks pqdh gS] rFkk e/;izns'k 'kklu }kjk mDr fo/kku dh /kkjk 52 ds vUrxZr Lohdkj dh xbZ gS] mDr ;kstuk gsrq 57 ch?kk 2 fCkLok Hkwfe 17 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 lEiknu djus dh foKfIRk mDr fo/kku dh /kkjk 68¼1½ ds vUrXkZr e/;izns'k jkti=] fnukad 19 vxLr 1966] Hkkx 3¼1½ esa izdkf'kr dh tk pqdh gS] ,oa mDr Hkwfe U;kl }kjk vf/kizkIRk djus dh 'kklu Lohd`fr mDr fo/kku dh /kkjk 70 ds vUrxZr izkIr dj yh xbZ gS-
vr% Xokfy;j lq/kkj U;kl] Xokfy;j us mDr Hkwfe ftldh prq%lhek /kkjk 46 ds vUrxZr izdkf'kr foKfIRk esa nh tk pqdh gS] dks vf/kizkIr djus dk fu.kZ; fd;k gS] rnuqlkj bl foKfIr }kjk loZ&lEcfU/kr O;fDr;ksa ds lwpukFkZ izdkf'kr fd;k tkrk gS fd mDr Hkwfe bl foKfIr ds e-iz- jkti= esa izdkf'kr gksus ds fnukad ls /kkjk 71¼2½ ds vuqlkj leLr _.k Hkkj ls eqDr Xokfy;j lq/kkj U;kl] Xokfy;j esa osf"Br gks tk;sxhA^^ (26) It is pertinent to note at this stage which fact is borne out from the averments made in paragraph 4 of the return filed by respondent Gwalior Development Authority in WP.7861/2011 that each of the landowners of the land in question in 1963, who were not the petitioners, had consented and surrendered their land for Scheme No.2A and 5 respectively. It is averred:
"4. That, earlier on 07-09-1963 notices were issued to all concerning land owners whose lands were proposed to be acquired, accordingly notice for proposed acquisition of land were issued under sec. 48 of the repealed act of 1960 after making publication of behind mela ground Scheme no.2-A under sec. 46 on 6th of September 1963. Thereafter concerning land owners had tendered their consent to surrender their land on 16.09.1963. Thereafter erstwhile trust had issued the notices to the land owners, whose lands were to be acquired for hearing on the objections (if any) on 22-11-1963. Thereafter List of those land owners were prepared on 04.10.1966 whose lands were proposed to be acquired. Thereafter due to consent tendered by the land owners, 18 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 land in questions belonging to behind mela ground scheme no.2-A had been acquired and vested in erstwhile trust as soon as final notification under sec. 71(1) of the repealed Act of 1960 was published on 30.12.1996 (ann.R/2). After final publication under sec. 71(1) of the repealed Act of 1960, those land owners were informed vide notices dated 11.01.1967 to handover the possession of the land in question to the erstwhile trust in term of sec. 71(3) of the repealed Act of 1960, failing which answering respondent will take possession forcibly. Copies of the some notices issued by erstwhile trust in compliance of sec. 48, 50(2), 71(3) and (4), list of land owners prepared on 04-10-
1966 and consent letters tendered by the land owners are annexed herewith and marked as ANNEXURES-R/3 collectively."
(27) To substantiate these contentions, respondent Gwalior Development Authority also filed certain documents vide I.A.No.4286/2017. These documents are notices to the owners of the land in question under Section 48 and the surrender of land for the schemes.
(28) It is further noticed that though the petitioners filed reply to the interlocutory application; however, there is no specific denial of the contention in paragraph 4 of the return, nor as to the correctness of the documents filed vide I.A.No.4286/2017.
(29) It is also a matter of record that the land in question were purchased through five sale-deeds, respectively executed on 5/7/1965, 4/1/1968, 15/6/1965, 27/7/1967 and 26/6/1965; i.e., much after the date when the same was notified under Section 68 of 1960 Act and surrendered by their respective owners in favour of 19 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 Trust.
(30) It is also a matter of record that the Firm Hariom Trading Company in 1978 filed a suit (Civil Suit No.23A/78) for declaration of title and permanent injunction in respect of land situated at village Gospura bearing Survey Nos. 2217, 2229,, 2231, 2244, 2247, 2248, 2261, 2169, 2172, 2167, 2168, 2188 & 2191 total land admeasuring 21 Bigha 8 Biswa, covered by Scheme No.5. The suit was dismissed as withdrawn on 18/1/2000. Evident it is from the correspondence brought on record and collectively marked as Annexure R/3 with the Writ Petition No.7862/11 that father of the petitioner in 1977 had refused to take the compensation in lieu of the land acquired for Scheme No.4,5, and 6, thus, acknowledging the fact that the land stood vested in the Trust.
(31) These facts led the learned Single Judge record the following findings in paragraph 15, 23 and 24:
"15- Town Improvement Trust Gwalior which happens to be the predecessor of Gwalior Development Authority floated a scheme No.2-A behind Mela Ground, Gwalior for development of the area as per the provisions of Act of 1960. At that time, the land in question and the survey numbers which are mentioned in the impugned orders were admittedly under the right, title, interest and possession of some other persons. Those owners in response to the notice under Section 48 of the Act of 1960 appeared before the trust and gave their consent for acquisition of the land. It appears that they agreed to give their land to the Trust and as natural corollary said owners might have received the 20 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 compensation.
23- Impugned notice has been issued under the provisions of the Act of 1960 because the said provision regarding vesting of the land and acquisition have been clearly saved by virtue of Section 87 of the Adhiniyam of 1973. All schemes prepared under the Act of 1960 deemed to have been prepared under the Adhiniyam of 1973 whereas the land has been absolutely vested in the trust thus issuance of notice is consequential and ministerial in nature. It does not and cannot alter the fate of the petitioners and render the whole proceedings as nonest.
24- Since the provisions of Section 71 of the Act of 1960 are saved, therefore, the provisions of Section 54 of the Adhiniyam of 1973 cannot be borrowed to create a anomalous situation because in that position, Section 71 of the Act of 1960 and Section 54 of the Adhiniyam of 1973 would stand at loggerheads and it would not have been the legislative intent at any point of time. Once the land has been vested free from all encumbrances then in that condition any rider of Section 54 of the Adhiniyam of 1973 would not come into play because the scheme has already been started for implementation and Section 54 itself has been omitted from the statute book and the said omission is to be construed in the light of judgment rendered by the Hon'ble Apex Court in the matter of Zile Singh (supra), State of Uttar Pradesh and others (supra) and Shree Bhagwati Steel Rolling Mills (supra), therefore, Section 54 of the Adhiniyam of 1973 would not come to haunt the respondents. Petitioners cannot be given any benefit on this count."21 Writ Appeal.1084/2017
& Writ Appeal.1085/2017 (32) These findings are taken exception of.
(33) Though it is contended on behalf of the petitioners that learned Single Judge erred in drawing an inference that the owners must have received the compensation. However, the fact is that, respective owners after surrendering the land which vested in the Trust did not approach the Trust for compensation, instead sold the land between the year 1965 to 1968 to the petitioners' father whose case for compensation was drawn but he did not accept the same. Therefore, the opinion formed by learned Single Judge in paragraph cannot be discarded.
(34) Further contention on behalf of the petitioners is that the Trust entered into an agreement with M/s Hariom Trading Company on 26/05/1970 (in WP.7861/11) and on 30/5/1970 (in WP.7862/11) and therefore, the Trust could not have wriggled out from the said agreement. These agreements which are adverted to respectively record in paragraph 4 thereof that 54 Bigha 13 Biswa notified for Scheme 2A and 42 Bighas 8 Biswa earmarked for Schemes No.4 and 5, will not vest in Trust is contrary to the notifications issued under Section 71(2) of 1960 Act, on 28/10/1966 and 30/12/1966, whereby the land in question stood vested, and no statutory provisions having been commended at that a land once vested in the Trust can be divested, as would have or will create any right in the petitioners' predecessors, nor in favour of the petitioners.
(35) Furthermore, the land in question which vested in the Trust, which after the establishment of Gwalior Development Authority became the assets of the said 22 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 Authority. And the schemes being consistent with the provisions of the Act 1973 and having been implemented by the Trust before its dissolution and the development being ongoing process, the Writ Court was well within its rights in holding that the provision of Section 54 of 1973 Act does not get attracted.
(36) Petitioners have placed reliance on the decision by a Division Bench of this Court in "Green Park Co- operative Housing Society Ltd., Indore Vs. Indore Development Authority, Indore and others AIR 1988 MP 27" wherein it is observed:
"6. Now the respondent Authority was established on 13-05-1977. S.87(c) of the Act provides that as from the date of the establishment of the Town and Country Development Authority for any area the Improvement Trust Act shall stand repealed in its application to the said area and any town improvement scheme prepared under the Improvement Trust Act shall, in so far as it is not inconsistent with the provisions of the Act, be deemed to have been prepared under the Act. Therefore, after the establishment of the Authority on 13-5- 1977, any town improvement scheme prepared by the Improvement Trust under the Improvement Trust Act cannot be implemented under the provisions of the Improvement Trust Act. Such a scheme can only be implemented under the Act as a scheme deemed to have been prepared under the Act, provided the said scheme is not inconsistent with the provisions of the Act. In this connection it is useful to remember that the provisions for implementation of a scheme, under the Act and the Improvement Trust Act differ in material particulars. Under the Improvement 23 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 Trust Act, the notice of acquisition of land is to be given by the Improvement Trust. The Improvement Trust has to take steps for acquisition after obtaining sanction of the State Government for acquisition and that in case of dispute, compensation is to be determined by a Tribunal constituted under the Improvement Trust Act. Under that Act, there is no presumption that land needed for the purpose of a town improvement scheme; shall be deemed to be a land needed for public purpose. Such a presumption, however, arises under the provisions of S. 55 of the Act. Section 56 of the Act provides for acquisition of land by the State Government at the request of the Authority for implementation of a scheme. After the constitution of the Authority, a scheme prepared under the Improvement Trust Act can be implemented under the Act only if it can be deemed to be a scheme prepared under the Act by virtue of the fiction introduced by S. 87(c) of the Act. The provision for preparation of a town development scheme is contained in S.50 of the Act. After a final town development scheme is prepared, as provided by S. 50 of the Act, sub-sec. (7) of S.50 of the Act provides for its publication. That provision is as follows:
"(7) Immediately after the town development scheme is approved under sub-sec.(4) with or without modifications, the Town and Country Development Authority shall publish in the Gazette and in such other manner as may be prescribed a final town development scheme and specify the date, on which it shall come into operation."24 Writ Appeal.1084/2017
& Writ Appeal.1085/2017 In pursuance of the aforesaid provisions of S. 50(7) of the Act, the Authority published Scheme No.59 in the Government Gazette dt.11-11-1977. Section 51 of the Act empowers the Director to exercise revisional powers in connection with the final town development scheme notified under S.50(7) of the Act. Section 51 further provides that the order passed by the Director shall be final. In the instant case, the petitioner aggrieved by the final development Scheme No.59 published in the Gazette as aforesaid, preferred a revision petition before the Director and the Director released the land of the petitioner from the purview of the Scheme No.59. The order of the Director was assailed by the Authority in a petition under Arts. 226/227 of the Constitution but that petition was dismissed by this Court on merits, by order dt. 27/04/1984 in Indore Development Authority Vs. Green Park Co-operative Housing Society, Misc. Petn. No.57 of 1984. The relevant observations of this Court in that order are as follows:
"The respondent 3, who had jurisdiction to decide the questions raised before him, passed an order upholding the objections of the respondent 1 against the scheme published by the petitioner under S. 50(7) of the Adhiniyam. The respondent 3 is not shown to have acted in excess of jurisdiction vested in it by law and the order is also not shown to have been vitiated by an error of law apparent on the face of record."
In face of the aforesaid observations, the contention that the Director had no 25 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 jurisdiction to decide the revision petition as the revision petition was not competent, cannot be allowed to be urged again in this petition. The question of jurisdiction of the Director to release the land of the petitioner from the purview of Scheme No.59 by passing an order in that behalf in the revision petition preferred by the petitioner, was finally decided by this Court in Misc. Petn. No.57 of 1984 (supra). It is no longer open to the Authority to contend that the revision petition itself being untenable as it was directed against a redundant notification issued by the Authority, the decision of the Director in the revision petition must be held to be null and void."
(37) These observations are on the finding that the Scheme mooted by the Trust while it was in vogue could not be sanctioned by the State Government under Section 51 of 1960 Act. Whereas in the case at hand as adverted at, the Scheme No.2A and 5 were duly sanctioned by the State Government in exercise of its powers under Section 51 leading to vesting of land in Trust. Thus, the decision in Green Park Co-operative Housing Society Ltd., Indore (supra), thus, is of no assistance to the petitioners.
(38) The decision in "Indore Development Authority Vs. Balkrishna and others [(1997) 9 SCC 321]"
relied on by the petitioners rather supports the respondents. Their Lordships were pleased to observe:
"6. It is seen that the scheme framed by the Trust and submitted to the Government under Section 52 of the Trust Act, the sanctioned scheme should be published which gives conclusiveness that 26 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 valid scheme was framed as per presumption under Section 52(2) and sanction was duly granted by the Government. In other words, the sanction given by the Government accords conclusive evidence of due compliance of law and that proposed land is needed for public purpose for acquisition of the land by the Trust under the provisions of the Trust Act. Once the sanction for acquisition of land thereof was accorded under Section 70 and notification was published under Section 71(2), the land should be deemed to have been vested in the State covered by the scheme free from all encumbrances. Thereby, the vesting is complete on the date of publication of the notification under Section 71(2). It was done on August 22, 1973. The steps required to be taken under sub-section (3) and sub-section (4) of Section 71 are only ministerial acts. Therefore, vesting is not kept in jeopardy or postponed or becomes incomplete till actual possession is taken by the authorities under Section 71(3) or 71(4) as the circumstances so warrant, by issuance of notice and expiry of thirty days in the event of failure to deliver or surrender possession by the person in possession of the land vesting in the State; thereafter possession could be taken as per procedure in sub-section (4) of Section
71."
(39) In the case at hand as the Scheme 2A and 5 having commenced even before the assets vested with the Gwalior Development Authority; the provisions of Section 54 of the Act of 1973 do not get attracted.
(40) Further contention that with the advent of Section 87(1)(C)(ii) of the Act of 1973 a right accrued in favour of the petitioners to take advantage of Section 54 of the Act of 1973 is taken note of and rejected at the outset.
27 Writ Appeal.1084/2017& Writ Appeal.1085/2017 In "Commissioner of Income Tax, U.P. Vs. M/s Shah Sadiq and sons [(1987) 3 SCC 516]", relied upon by the petitioners, the question was whether the assessee under the Income Tax Act 1922 was entitled for set off of the speculation losses suffered in the assessment years 1960-61 and 1961-62 against the speculation profits of the previous years, as the ITO had rejected the claim by applying Section 75(2) of 1961 Act on the ground that the losses could be carried forward and set off only by the partners and not the registered firm. Negativing the same their Lordships were pleased to observed for the assessment year 1961-62 the assessee had accrued and vested right under Section 24(2) of the 1922 Act to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years. In view of Section 6(c) of the General Clauses Act a right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the status under which that right accrued unless the repealing statute took away such right expressly or impliedly. Whatever rights are expressly saved by the 'savings' provision stand saved. But, that does not mean that rights which are not saved by the 'savings' provision are extinguished or stand ipso facto terminated by the mere fact that new statute repealing the old statue is enacted. In this case the 'savings' provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statue under which such rights had accrued. Though the right to carry forward losses which had accrued under the repealed Income Tax Act, 1922, but that provision neither expressly nor by implication takes 28 Writ Appeal.1084/2017 & Writ Appeal.1085/2017 away that right of the assessee under Section 24(2) of the 1922 Act. Therefore, the assessee was entitled to the benefits of the 1922 Act. Therefore, the assessee was entitled to the benefits of Section 24(2) of the 1922 Act. Section 75(2) of the 1961 Act had no application in the facts of the present case. (Paragraphs 14 & 15).
(41) Similarly the decision in "S.L. Srinivasa Jute Twine Mills (P) Ltd. Vs. Union of India and another [(2006) 2 SCC 740]" is of no assistance to the petitioners as the decision therein turns on its own facts.
(42) Having, thus, considered, we find no good reasons to cause any indulgence with the order passed in Writ Petition No.7861/2011 and Writ Petition No.7862/2011.
(43) Consequently, both the appeals fail and are dismissed. However, there shall be no costs.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
(15/12/2017) (15/12/2017)
pd
PAWAN
DHARKAR
2017.12.15
17:21:15 -08'00'