Madhya Pradesh High Court
Alpaai Nagrik Grih Nirman Sahakari ... vs State Of Madhya Pradesh And Ors. on 7 February, 1996
Equivalent citations: AIR1996MP133, AIR 1996 MADHYA PRADESH 133
ORDER T.S. Doabia, J.
1. The petitioner-society applied for the sanction of a lay-out plan. This is required to be sanctioned under the Madhya Pradesh Nagar Tatha Gram Nivesh Adhini-yam, 1973, The requisite sanction has been placed on record as Annexure P/2. Tnis was for a period of one year. An application for extension was filed. This was done, after the expiry of the period of one year. This prayer has not been entertained. The reason given for this is that the petitioner society should see to it that 15% of the land is car-marked for special purposes. This special purposes is said to be to provide accommodation to a sector of population described as "informal sector". According to the State counsel, this sector represents that section of society which is either covered by the term 'Scheduled Castes or Schedule Tribes.'
2. I am of the view that the requirement to ask the petitioner society to ear-mark the land of 15% for this purpose is not spelled out from any statutory provision. A circular cannot assume the status of a law enacted by the State Legislature.
3. Article 300A of the Constitution of India provides that a person is not to be deprived of his property except in due course of law. No statutory provisions has been quoted which may indicate that such a provision exist in this regard it would be apt to refer to the decision given by the Supreme Court of India in Yogendra Pal v. Municipality, Bhatinda, AIR 1994 SC 2550. Section 192 of Punjab Municipal Act, 1911, provided that while framing a Town Planning Scheme 25% of the land would vest in the municipal authorities free of costs. Even though this was a pre-constitution law, the Supreme Court of India was of the view that this statutory provision was unconstitutional and violative of Article 14 of the Constitution of India. The above decision would apply to the facts of this case, in the above case the Supreme Court of India held :
"In the absence of any provision in the Act which suggests that the land owner continues to be the owner of the land or that the land remains in his possession in spite of the transfer and that he is entitled to deal with or dispose of the same as he desires, it is obvious that the use of the word 'transferred" is a euphemism for "acquisition". We have also emphasised above the fact that if the land was not to vest in the Municipal Committee there was no need for the legislature to provide for payment of compensation even when the land so "transferred" exceeds 25 per cent of the toal holding of the land-owner. We are, therefore, more than satisfied that when the land is "transferred" under Section 192(1)(c) of the Act, the transfer is nothing short of acquisition divesting the land owner of all his rights as owner of the land.
It was further held :
"In the present case the so-called transfer which as held above was nothing but acquisition, was effected prior to 20-6-1979. Being without payment of compensation, it was hit by Article 31(2) of the Constitution as it stood prior to 20-6-1979. The Article provided that no property shall be compulsorily acquired or requisitioned save for a public purpose and sav e by authority of a law which provided for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law. As has been discussed above, Section 192(1)(c) of the Act provides for acquisition of the land without providing for payment of compensation up to 25 per cent, of the land of the landowner and also without providing for either the amount or the principles of fixation of such amount for the remaining 10 per cent of the land. Section 192(1)(c), therefore, clearly violated the provisions of the said Article.
In para. 15 it was concluded :
"Hence, white we hold that the provisions of Section 192(1)(c) of the Punjab Municipal Act, 19)1 and of Section 203(1)(c) of the Haryana Municipal Act, 1973 being violative of Article 14, of the Constitution are void with effect from the date of this judgment and set aside the impugned decision of the High Court, we for the reasons already stated, in the peculiar facts of these cases, dismiss the appeals and the writ petition.
4. As such, the insistence of the respondents that 15% of the land should be earmarked for informal purposes is a requirement which is not known to law and it cannot be insisted upon.
5. It be seen that the original lay out for sanction was for a period of one year. An application for extension was made beyond a period of one year. According to the petitioner, the maximum period for which a lay out plan can be kept alive is up to 3 years. Even this period of 3 years is over. The petitioner would accordingly apply afresh. The petitioner may also apply to the Municipal Corporation. In case, such an application is filed, the same be disposed of in accordance with law. If the lay out plan is not to be approved then specific reasons would be given. This would be done within a period of two months. This period to begin from the date copy of this order is made available to the respondents.