Rajasthan High Court - Jaipur
Ram Chandra Kasliwal vs State Of Rajasthan And Ors. on 7 May, 2004
Equivalent citations: RLW2004(3)RAJ1788, 2004(4)WLC17
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT Anil Dev Singh, C.J.
1. These two appeals are directed against the order dated January 10, 2003 of the learned Single Judge rendered in SB Civil Writ Petitions Nos. 8191/2002 & 8184/2002, to the extent the notification dated July 10, 2002, Annexure-3 to the writ petition, issued under Section 4 of the Land Acquisition Act, 1894 (for short "the LA Act"), has been upheld.
2. The brief facts leading to the filing of these two appeals are as follows:
On July 10, 2002, twenty feet wide strip of land on either side of Bhawani Singh Road between Indira Circle and Ram Bagh Circle for the purposes of widening the road was notified by the State under Section 4 of the LA Act. The Notification was published in the Official Gazette. It was also published on July 27, 2002 in two daily newspapers, having circulation in the locality. Besides, on August 29, 2002, the District Collector, Jaipur caused public notice of the substance of the Notification in the locality Pursuant to the Notification under Section 4 of the LA Act, persons interested in the land including the appellant submitted their objections to the Land Acquisition Officer (Collector) on August 21, 2002. By a notice dated September 16, 2002 (Annexure-6 to the writ petition), the Land Acquisition Officer (Collector) invited persons interested in the land to produce oral or documentary evidence in support of their objections. For those persons interested in the land, who had not availed of the earlier opportunity to file objections, the notice invited them to file objections to the acquisition under Section 4 of the LA Act by October 16, 2002, While inquiry under Section 5A of the LA Act was pending, a Notification under Section 17(4) of the LA Act was issued on November 02, 2002 (Annexure-8 to the writ petition) dispensing with the provision of Section 5A of the LA Act in view of the urgency for the acquisition of the land. Thereafter on November 03, 2002, the Land Acquisition Officer (Collector) issued a notice under Section 9 of the LA Act whereby the Government expressed its intention to take possession of the land and required the persons having interest therein to prefer their claims for compensation. The appellants being aggrieved by the issuance of the notifications under Section-4 and Section 17(4) of the LA Act in respect of the land in question, challenged the acquisition proceedings on various grounds. The learned Single Judge by his judgment & order dated January 10, 2003, partially allowed the writ petition and quashed the Notification dated November 02, 2002 (Annexure-8 to the writ petition}, issued under Section 17(4) of the LA Act. At the same time; the learned Single Judge rejected the challenge to the notification dated July 10, 2002 of the State Government issued under Section 4 of the LA Act and gave liberty to the State to continue the inquiry under Section 5A of the LA Act was inter alia based on the contention that the land acquisition proceedings were initiated by the Appropriate Government at the instance of the Jaipur Development Authority (for Short "JDA"), which was not competent to deal with the public street/road and it was the Jaipur Municipal Corporation (for short "Municipal Corporation"), which was empowered under Article 243W of the Constitution of India, read with Section 82 of the Rajasthan Municipalities Act, 1959 (hereinafter to be referred as "the RM Act") to initiate proceedings for acquisition of land for construction of roads within the municipal areas. Since the Municipal Corporation had not felt the necessity to widen the road in question and had not requested the State to acquire the land, the initiation of proceedings for acquisition of the land were illegal. Another challenge, which was mounted by the appellants on the allegation that no survey was undertaken by the state with regard to the question of necessity for widening of the road, was rejected by the learned Single Judge. Since the acquisition proceedings as a whole were not quashed by the learned Single Judge, the appellants have filed the instant appeals seeking setting aside of the impugned order of the learned Single Judge to the extent the aforesaid pleas of the appellants were negatived by the learned Single Judge and the notification under Section 4 of the LA Act was held to be valid.
3. The learned counsel appearing for the appellants submitted that after the insertion of Part IXA in the Constitution by the Constitution (Seventy forth) Amendment Act, 1992, the JDA has ceased to be possessed of the powers and duties in respect of the matter, which are entrusted to the Municipal Corporation. The learned counsel drew our attention to Articles 243P to 243ZG in general and Article 243W and the Twelfth Schedule in particular. Reading Article 243W with entry 4 of the Twelfth Schedule learned counsel contended that acquisition of land for the widening of the road could be undertaken by the State only at the instance and on behalf of the Municipal Corporation. According to the learned counsel, the State legislature pursuant to the provisions of Article 243W has entrusted all matters relating to public streets including construction of roads and widening thereof etc., to the Municipal Corporation. In their endeavour to support this submission, they made reference to various provisions of the RM Act. It was pointed out that under Section 12 of the RM Act the municipal government of a municipality vests in the municipal board established under the RM Act and it stands charged with the duty to carry out the provisions of the RM Act subject to the limitations and restrictions specified therein. Our attention was also drawn to Clause (j) of Section 98 of the RM Act according to which board is required to make reasonable provision for several matters within the municipality under its authority including construction, alteration and maintenance of public streets. The learned counsel also referred to Section 101 of the RM Act and submitted that it is there board, which is required to consider the question of acquisition of land for laying out public streets. Drawing on the provisions of Section 161 of the RM Act they maintained that it is only the board, which can lay out and made new public streets. Alluding to Section 165 of the RM Act, the learned counsel for the appellants canvassed that it is the board, which can prescribe a line on either side or both sides of the public street within the municipality and it is also authorized to prescribe a fresh line in substitution of any line so prescribed.
4. On the basis of Article 243W and the aforesaid provisions of the RM Act, the learned counsel vehemently contended that the maintaining and widening of streets is under the sole power and discretion of the municipal board and no other local body can be entrusted with such powers. As a sequitur it was submitted that the State Government could acquire land for widening of the streets only at the request of the Municipal Corporation. The learned counsel pointed out that since the Notification under Section 4 of the LA Act was not issued at the request of the Municipal Corporation, the same stands vitiated. Relying on the provisions of Section 82 of the RM Act it was submitted that when any land, whether within or without the limits of the municipality, is required for the purposes of the RM Act, the State Government can proceed to acquire the land under the provisions of the Rajasthan Land Acquisition Act, 1953 only at the request of and on behalf of the municipal board and no payment of the compensation in connection with such acquisition by the municipal board to the State Government.
5. Dealing with Section 4 of the LA Act the learned counsel for the appellants submitted that the provision does not confer arbitrary powers on the government to acquire the land whenever it appears to it that land is needed to likely to be needed for any public purpose. It was contended that the word "appear" is of great significance, according to the learned counsel, the State Government will not act in vacuum but will act only when it is requested by a person or body that is empowered to make a demand for acquisition of land. On the demand/request being made by the authority competent to require the State to acquire the land, the latter will apply its mind and when it appears to it that the land is required for a public purpose, will issue the Notification under Section 4 of the LA Act. It was further submitted that since it is the Municipal Corporation which has been empowered to make a demand/request to the State to acquire the land for construction or widening of a public street, the State Government cannot act to acquire the land at the request of some other authority. It was also pointed out that when a statute requires a particular act to be performed in a certain way, it must be performed in that way or not at all. Expanding on the submission it was urged that as the RM Act provides a complete code for widening/construction of a public street and for making regular line thereof, the widening of the public street must be carried out in the manner so provided and not at the request of the JDA which has nothing to do with the widening of a public street as its jurisdiction with regard thereto is ousted by Part IXA of the Constitution and the RM Act. It was contended that in any event, there is no provision in the Jaipur Development Authority Act, 1982 (for short hereinafter "JDA Act") similar to the provisions of the RM Act which provides for construction/alteration/widening of the streets and prescribe the regular line of houses. It was also submitted that the LA Act is a general law dealing with acquisition, while the RM Act is a special law and, therefore, the latter would govern the matter relating to acquisition of land for widening of a public street.
6. Lastly, it was submitted that the State Government before issuing Notification under Section 4 of the LA Act did not make any survey as to whether or not the street was required to be widened. It was canvassed that the widening of the street was not required as there was no congestion of traffic between Ram Bagh Circle and Indira Circle. It was contended that the decision of State Government to acquire the land suffers from non-application of mind and is a mala fide one.
7. The core question for determination is whether the notification issued under Section 4 of the LA Act could be issued by the State only at the instance of the Corporation and not otherwise. Each of the learned counsel for the parties has highlighted some or the other provisions of Part IX-A of the Constitution, inserted by Constitution (Seventy-fourth) Amendment Act, 1992, the JDA Act and the RM Act in their bid to search for the answer to the vexed question involved in the appeals. These provisions need to be put together at one place to make them easily accessible for facility of immediate reference. We, therefore, deem it appropriate to set out the provisions referred to by the learned counsel for the parties.
PART IXA of the Constitution
8. The Municipalities "243. Definitions.-xxx
(a) xxx
(b) xxx
(c) "Metropolitan area" means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be Metropolitan area for the purposes of this Part.
(d) "Municipal area" means the territorial area of a Municipality as is notified by the Governor;
(e) "Municipality" means an institution of self- government constituted under Article 243Q;
243Q. Constitution of Municipalities. - (1) There shall be constituted in every State-
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided xxx (2) xxx 243R. Composition of Municipalities. - (1) Save as provided in Clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as words.
243S. Constitution and composition of Wards Committees, etc.- xxx 243T. Reservation of seats. - xxx 243U. Duration of Municipalities, etc. xxx 243V. Disqualification for membership, - xxx 243W. Powers, authority and responsibilities of Municipalities, etc. - Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow-
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law, may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to-
(i) the preparation of plans for economic development and social justice.
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.
Addition of Twelfth Schedule (Article 243W)
1. Urban Planning including town planning.
2. Regulation of land-use and construction of buildings.
3. Planning for economic and social development.
4. Roads and bridges.
5. Water supply for domestic, industrial and, commercial purposes.
6. Public health, sanitation conservancy and solid waste management.
7. Fire services.
8. Urban forestry protection of the environment and promotion of ecological aspects.
9. Safeguarding the interests of weaker sections of society including the handicapped and mentally retarded.
10. Slum improvement and upgradation.
11. Urban poverty alleviation.
12. Provisions of urban amenities and facilities such as parts, gardens, play-grounds.
13. Promotion of cultural, educational and aesthetic aspects.
14. Burials and burial grounds, cremations, cremation grounds and electric crematoriums.
15. Cattle ponds; prevention of cruelty to animals.
16. Vital statistics including registration of births and deaths.1
17. Public amenities including street lighting, parking lots, bus stops and public conveniences.
18. Regulation of slaughter houses arid tanneries.
243X. Power to impose taxes by and Funds of, the Municipalities.- xxx 243Y. Finance Commission. - xxx 243Z. Audit of accounts of Municipalities- xxx 243ZA. Elections to the Municipalities.-xxx 243ZB. Application to Union territories. - xxx 243ZC. Part not to apply to certain areas-, (1) Nothing in this Part shall apply to the Scheduled Areas referred to in Clause(1), and the tribal areas referred to in Clause(2), of Article 224.
(2). Nothing in this part shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under any law for the time being in force for the hill areas of the district of Darjeeling in the State of West Bengal.
(3). Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in Clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of Article 368.
243ZD. Committee for district planning-(1):- There shall be constituted in every State at the district level a District Planning Committee to consolidate the plans prepared by the Panchayats and the Municipalities in the district and to prepare a draft development plan for the district as a whole.
(2) xxx (3) xxx (4) xxx 243ZE, Committee for Metropolitan planning.(1) There shall be constituted in every Metropolitan area a Metropolitan Planning committee to prepare a draft development plan for the Metropolitan area as a whole.
(2) xxx (3) Every Metropolitan Planning Committee shall, in preparing the draft development plan-
(a) have regard to-
(i) the plans prepared by the Municipalities and the Panchayats in the Metropolitan area;
(ii) matters of common interest between the Municipalities and the Panchayats including co-ordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;
(iii) the overall objectives arid priorities set by the Government of India and the Government of the State;
(iv) the extent and nature of investments likely to be made in the Metropolitan area by agencies of the Government of the Metropolitan area by agencies of the Government of India and of the Government of the State and other available resources whether financial or otherwise.
(b) consult such institutions and organizations as the Governor may, by order, specify.
(4). The Chairperson of every Metropolitan Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State.
243ZF. Continuance of existing laws and Municipalities.- Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-forth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one years from such commencement, whichever is earlier.
Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to the affect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.
243ZG. Bar to interference by courts in electoral mattes.-xxx The relevant provisions of the Rajasthan Municipalities Act, 1959 73A. Constitution of Wards Committee-(1) Where the population of a city is three lakhs or more, there shall be constituted by the Board, Wards Committees consisting of one or more wards within the territorial area of the municipality.
(2) Each Wards Committee shall consist of-
(a) members of the board representing the wards within the territorial area of the Wards Committee, and
(b) such other member, not exceeding five who are not less than 25 years of age and who have special knowledge or experience in municipal administration to be nominated by the Board.
Provided that a person shall be disqualified for being nominated, and for being a member of the Wards Committee, if under the provisions of this Act or any other law for the time being in force, he would be disqualified for being elected as, and for being, a member.
Provided further that a person nominated under this clause shall not have the right to vote in the meetings of the Wards Committee.
(3) Where a Wards Committee consists of one wards, the member representing that ward in the municipality shall be the Chairperson of the Committee.
(4)(a) The Wards Committee shall at its first meeting after its constitution under Sub-section (1) and at its first meeting in the same months in each succeeding year shall elect where the Wards Committee consists of two or more wards, one of the members representing such wards in the municipality to be the Chairperson of the Committee.
(b) The Chairperson shall hold office until his successor has been elected and shall be eligible for re-election.
(5) The Chairperson shall vacate office as soon as he ceases to be a member.
(6) In the event of the office of the Chairperson falling vacant before the expiry of him term, the Wards Committee shall, as soon as conveniently may be after the occurrence of the vacancy, elect new Chairperson in accordance with Sub-section (4):
Provided that a Chairperson so elected shall hold office so long only as the person in whole place he is elected would have held if if such vacancy had not occurred.
(7) The duration of the Wards Committee shall be co- extensive with the duration of the municipality.
(8) The Board shall by order define the functions and duties of the Wards Committee, the territorial area of such committees and the procedure to be adopted by such committee for transaction of its business.
(9) The provisions of Section 76 and 77 shall apply in relation to a Wards Committee as they apply to other committees.
73B. Committee for Metropolitan Planning-(1) There shall be constituted in every Metropolitan Area a Metropolitan Planning Committee hereinafter in this section referred to "as the Committee" to prepare a draft development plan for the Metropolitan Area as a whole.
(2) The Committee shall consists of such number of members as may be fixed by the State Government from time to time by notification in the Official Gazette.
(3) In so fixing the total number of members of the Committee, the State Government shall specify the number respectively of the nominated members and elected members.
Provided that not less than two thirds of the members of such committee shall be elected by, and from amongst, the elected members of the municipalities and Chairpersons of the Panchayats in the Metropolitan area in proportion to the ratio between the population of the municipal areas and of the panchayats in that area.
(4) The elected member shall be chosen in such manner as may be prescribed.
(5) The nominated members may consist of-
(a) person representing the Government of India;
(b) person representing the State Government; and
(c) persons representing such Organisations and Institutions as may be deemed necessary by the State Government.
(6) The nomination of the persons referred to in Sub-section (5) shall be made by the State Government, subject, however, to the condition that in case of persons representing Government of India or any Central Government Organisation or Institution prior concurrence of Government of India shall be obtained.
(7) The nomination may be made in person or by virtue of the office persons hold under the Central Government or State Government or in the Organisations and Institutions aforesaid.
(8) The Committee shall have-
(i) the functions relating to planning and co-ordination for the Metropolitan area which may be assigned to it by the State Government, and
(ii) Powers and functions as may be conferred on or delegated or entrusted to it by the State Government for carrying out the purposes of this Chapter.
(9) The Chairperson of such Committee shall be chosen by the elected members from amongst themselves.
(10) Every Metropolitan Committee shall in preparing the draft development plan have regard to-
(i) the plans prepared by the municipalities and the panchayats in the Metropolitan area;
(ii) matters of common interest between the municipalities and the panchayats, including co-ordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;
(iii) the overall objectives and priorities set by the Government of India and the State Government; and
(iv) the extent and nature of investments likely to be made in the Metropolitan area by agencies of the Government of India and of the State Government and other available resources whether financial or otherwise.
(11) The Chairpersons of every Metropolitan Committee shall forward the development plan, as recommended by such Committee, to the State Government.
Explanation.- For the purposes of this section, or those of Section 73-C the term "Metropolitan Area" and "Panchayat" shall have the meanings respectively assigned to them in Article 243P of the Constitution of India.
73-C. Committee for District Planning-A District Planning Committee constituted under the provisions of Section 121 of the Rajasthan Panchayati Raj Act, 1994 (Act No. 13 of 1994) shall be deemed to be the Committee constituted under Article 243ZD of the Constitution of India.
82. Acquisition of land.- When any land or right in land whether within or without the limits of the municipality, is required for the purpose of this Act, the State Government may, at the request and on behalf of the board, proceed to acquire it under the provisions of the Rajasthan Land Acquisition Act, 1953 (Rajasthan Act XXIV of 1953) and on payment by the board to the State Government of the compensation awarded thereunder and of other charges incurred by the State Government in connection with such acquisition, the land or right, as the case may be, shall vest in the board.
92. Power to acquire and hold property.-(1) Every board may acquire and hold property both movable and immovable whether within or without the limits of the municipality.
(2) All property of the nature hereinafter in this sections specified and not being specially reserved by the State Government shall vest in and belong to the board, and shall together with all other property of whatsoever nature or kind not being specially reserved by the State Government, which may become vested in the board, be under its direction, management and control, and shall be held and applied by it as trustee subject to the provisions and for the purposes of this Act, that is to say-
xxx
(f) all public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements and this provided for such streets; and xxx
98. Duties of boards,- It shall be the duty of every board to make reasonable provision for the following matters within the municipality under its authority, namely: -
....... ....... .......
....... ....... .......
(j) constructing, altering and maintaining public streets, culverts, municipal boundary marks, markets, slaughter-houses, drains, sewers, drainage-words, sewerage-words, baths, washing places, drinking fountains, tanks, wells, dams and the like;
101. Secondary powers of expenditure of board.- Boards may, at their discretion, provide out of the municipal property and fund, either wholly or party, for-
(a) laying out, whether in areas previously built upon or not, new public streets and acquiring land for that purpose, including land requisite for the construction of building or cartilages there of, to about on such streets;
xxx (ww)(i) preparation of plans for economic development and social justice;
161. Powers regarding streets, etc.- (1) it shall be lawful for the board to lay out and make new public streets, and to construct tunnels and other words subsidiary to the same and to widen, open, enlarge or otherwise improve any such streets, and to turn, divert, discontinue or stop up any such streets, and, subject to the provisions of Sub-section (2) of Section 80, to lease or sell any such land, theretofore used or acquired by the board for the purpose of such streets, as may not be required for any public streets or for any other purposes of this Act.
(2) In laying out or making, or in turning, diverting, widening, opening, enlarging or otherwise improving any public street, the board may acquire, in addition to the land required for the carriage-way and foot-way and drains thereof, land necessary for the houses and buildings to form and said street, and subject to the provision contained in Sub-section (2) of Section 80, may sell and dispose of such additional land in perpetuity or on lease for a term or years, with such stipulations as to the class and description of houses or buildings to be erected thereon as it may think fit.
165. The regular line of public street-(1) Every board shall prescribe a line on either side or both sides of a public street within the municipality and may from time to time prescribe a fresh line in substitution of any line so prescribed or of any part thereof if the board thinks the prescribing of such fresh line to be necessary for the purpose of widening such public street or any part thereof:
Provided that xxx (2) The line for the time being so prescribed shall be called the regular line of the public street.
(3) No person shall construct or reconstruct any portion of any building within the regular line of the public street.
(4) xxx (5) Any person aggrieved by an order of the board under Sub-section (4) may within thirty days from the date of such order, exclusive of the time requisite for obtaining a copy thereof, appeal to the Collector and the order of the appellate authority shall be final and shall not be liable to the called in question in any court.
The relevant provisions of the Jaipur Development Act, 1982 Section 1 Short title, extent and commencement. - xxx Section 2 Definitions, (1) xxx (2) "amenities" includes roads, bridges, and other means of communication, transport, streets, open spaces, parks, recreational grounds, play grounds, water, gas and electric supply, and sources of energy, street lighting, sewerage, drainage, conservancy, public works and such other utilities, services and conveniences as the State Government in consultations with the Authority may, by Notification in the Official Gazette, specify to be an amenity for the purpose of this Act;
XXX (5) "development" with its grammatical variations, means the carrying out of building, engineering, mining or other operations in, or over, or under any land (including land under river, lake or any other water) or the making of any material change in any building or land or in the use of any building or land, and includes re-development and lay-out, and sub-division of any land and also the provision of amenities and projects and schemes for development of agriculture, horticulture, floriculture, forestry, dairy development, poultry farming, piggery, cattle breeding, fisheries and other similar activities, and 'to develop' shall be construed accordingly;
xxx (8) "Jaipur Region" means the areas in the limits of the city, towns, and village specified in Schedule-1. The State Government may, from time to time, in the Notification published in the Official Gazette, amend the Schedule by adding thereto or deleting therefrom any area specified in such notification; and thereupon the modified areas all be the Jaipur Region;
(22) words and expressions used in this Act, but not defined herein, shall have the same meaning as assigned to them in the Rajasthan Urban improvement Act, 1959 (Raj. Act No. 35 of 1959) and the Rajasthan Municipalities Act, 1959 (Raj. Act No. 38 of 1959).
Section 3 Establishment of the Jaipur Development Authority-(1) As soon as may be, after the commencement of this Act, the State Government shall, by notification in the Official Gazette, establish for the purposes of this Act an Authority to be called "the Jaipur Development Authority" (hereinafter referred to as "the Authority").
(2) The Authority shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power, subject to the provision of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and may sue or be sued by its corporate name aforesaid.
(3) The Authority shall be deemed to be a local authority within the meaning of the term "local authority" as defined in the Rajasthan General Clauses Act, 1955 (Raj.
Act No. 8 of 1955).
Section4 Composition of the Jaipur Development Authority. (1) The Authority shall consist of the following members, namely:-
(i) A Chairman, who shall be the Minister-in-charge of Urban Development of the State of Rajasthan, or a nominee of the Governor during President's Rule;
(ii) A Vice-Chairman, who shall be the State Minister of Urban Development of the State of Rajasthan, or a nominee of the Governor during President's Rule;
(iii) Secretary to the Government, Urban Development and Housing Department;
(iv) Jaipur Development Commissioner (Appointed under this Act).
(v) Chairman, Rajasthan Housing Board;
(vi) Chief Engineer, Public Health Engineering Department;
(vii) Chief Engineer, Public Works Department;
(viii) District Collector, Jaipur;
(ix) Chief Engineer, Rajasthan State Electricity Board;
(x) Chairman/Administrator, Municipal Council, Jaipur;
(xi) Zila Pramukh of Zila Parishad, Jaipur District;
(xii) Chief Town Planner, Rajasthan; and
(xiii) Non-official members, not exceeding seven, to be nominated by the State Government;
(2) Besides the members referred to in Sub-section (1) the State Government, if it so thinks fit, may also appoint the Chairman of any functional Board as member of the Authority.
(3) The Chairman of the Authority shall supervise and control all the activities on behalf of the Authority and shall exercise such powers and perform such duties as are conferred on him under this Act and exercise such other powers and perform such other duties as the Authority may, by regulations, from time to time determine.
xxx Section 7 Constitution and powers of Executive Committee.-(1) There shall be an Executive Committee of the Authority consisting of the following members namely: -
(i) A Chairman, who shall be the Jaipur Development Commissioner;
(ii) Secretary, Urban Development and Housing or his representative not below the rank of Deputy Secretary;
(iii) Secretary, Jaipur Development Authority (who shall be the Member-Secretary of the Committee);
(iv) Chief Engineer, Public Works Department, Rajasthan;
(v) Chief Engineer, Public Health Engineering Department, Rajasthan;
(vi) Representative of the Rajasthan State Electricity Board not below the rank of a Chief Engineer;
(vii) Managing Director, Rajasthan State Industrial and Investment Corporation Limited;
(vii) General Manager, Rajasthan State Road Transport Corporation;
(ix) Managing Director, Rajasthan Tourism Development Corporation;
(x) Director, Engineering of the Authority;
(xi) Director, Town Planning of the Authority;
(xii) Director, Finance of the Authority;
(xiii) Collector, Jaipur;
(xiv) Superintendent of Police, Jaipur;
(xv) The Commissioner, Municipal Council, Jaipur.
Provided that where an Administrator has been appointed of the Municipality of Jaipur, he shall be the member.
(2) The Executive Committee shall exercise the following powers and perform the following duties, namely: -
(i) organization of the divisions and operational units of the Authority;
(ii) preparation of drafts of regulations and recommending to the Authority for making them;
(iii) operation of the Jaipur Region Development Fund;
(iv) preparation of projects and schemes;
(v) approval or rejection of tenders for projects and schemes;
(vi) creation of posts under the Authority upto such level as may be determined by regulations;
(vii) borrowing and reborrowing of money required by the Authority;
(viii) investment of surplus money of the Jaipur Region Development Fund;
(ix) making of grants subventions, loans or advances to or sharing expenses with any local or other authority or person for projects and schemes;
(x) institution or withdrawal of legal proceedings on behalf of the Authority;
(xi) delegation of any of its powers and duties to its Chairman or any officer of the Authority.
xxx Section 13 Establishment of Jaipur Traffic Control Boards.-(1) As soon as may be after the Authority is established under Sub-section (1) of Section 3 the State Government shall, by order constitute a Functional Board to be 'called as the "Jaipur Traffic Control Board" under the Authority;
(2) The Jaipur Traffic Control Board shall consist of the following members, namely:-
(i) A Chairman, who shall be the Jaipur Development Commissioner;
(ii) Secretary, Jaipur Development Authority,
(iii) Transport Commissioner, Rajasthan;
(iv) General Manager, Rajasthan State Road Transport Corporation;
(v) Chief Engineer, Public Works Department, Rajasthan;
(vi) Chief Engineer, Public Health Engineering Department, Rajasthan;
(vii) Representative of the Rajasthan State Electricity Board, not below the rank of a Chief Engineer;
(viii) Director, Engineering of the Authority;
(ix) Director, Town Planning of the Authority;
(x) Director, Finance of the Authority;
(xi) District Magistrate, Jaipur;
(xii) Superintendent of Police, Jaipur;
(xiii) Chairman/Administrator, Municipal Council, Jaipur; and
(xiv) Two persons to be nominated by the Chairman of the Authority.
(3) The Jaipur Traffic Control Board shall exercise the following powers and perform the following duties, namely:-
(i) to prepare a Master Plan for traffic control in Jaipur City and to take steps in a phased manner for its implementation;
(ii) to take steps to modernize the traffic control system;
(iii) to lay down the policy for issuing traffic licenses of light and heavy vehicles;
(iv) to determine policy for one way traffic, to impose restrictions for certain hours on certain kind of traffic on certain roads, ,to bar certain vehicles on certain roads, to determine parking places, stands, stops and cycle ways and other matters connected therewith.
(v) to lay down guidelines for raising sign-signals, barriers and speed breakers;
(vi) to grant permission to any person, Government department (Central or State), any local authority or any other body to cut the roads for various purposes and to impose conditions thereof;
(vii) to demolish traffic hazards, obstacles and the determine compensation in such cases in accordance with regulations;
(viii) to solicit help of the citizens and associations of repute to advise and raise funds for traffic control and traffic education in accordance with the rules;
(ix) to organize traffic education;
(x) to perform all other activities pertaining to the improvement and control of traffic and such other functions as may be directed by the authority.
Section 16 Function of the Authority - xxx
(h) preparing schemes and advising the concerned authorities, departments and agencies in formulating and undertaking schemes for development agriculture, horticulture, floriculture, forestry, dairy development, transport, communication, schooling, cultural activities, sports, medicare, tourism, entertainment and similar other activities;
xxx
(m) to prepare master Plan for traffic control and management, devise policy and programmes of action for smooth flow of traffic and mattes connected therewith;
(n) to perform functions designated by the State Government in the areas to urban renewal, environment and ecology, transport and communication, water energy resource management directly or through its Functional Boards or other departments/agencies as the State Government may specify;
xxx
(r) to do all such other acts and things which may be necessary for or incidental or conductive to, any matters which arise on account of its activity and which are necessary for furtherance of the objects for which the Authority is established.
xxx Section 19 Power of the Authority to require local authority to assume responsibilities in certain cases.-(1) Where any amenities are provided by the Authority, the authority may assume responsibility for the maintenance of me amenities which have been provided by it, or may require the local authority or any other authority, within whose jurisdiction the area so developed is situated, to assume such responsibility.
(2) The Authority, may also require the local authority or any other authority to make provision for such other amenities as may be specified by it and which have not been provided by the Authority on such terms and conditions as may be agreed upon and where such terms and conditions cannot be agreed upon, on such terms and conditions as may be specified by the State Government, in consultation with the local authority or any other authority, as the case may be, and the Authority.
Section 20 Power of the Authority to execute any plan-(1) Where the Authority is satisfied that any direction given by it under Sub-section (1) of Section 18 with regard to any project or scheme has not been carried out by the local authority or other authority or person referred to therein, within the time specified in the direction, or that any such authority or person is unable to fully implement any project or scheme undertaken by it for the development of any part of the Jaipur Region, the Authority may, with the sanction of the State Government itself undertaken any works and incur any expenditure for the execution of such projects or implementation of such schemes, as the case may be.
(2) The Authority may also undertake any work in the Jaipur Region in accordance with the Master Development Plan or the Zonal Development Plan or any other project or scheme as the case may be, as many be directed by the State Government and may incur such expenditure as may be necessary for the execution of such work. Such direction may be issued to the Authority only where in the opinion of the State Government-
(a) there is no other suitable authority to undertake such work, or
(b) where there is such an authority but it is unwilling or unable to undertake such work, or
(c) where the Authority has specifically requested the State Government to entrust such work to it.
(3) Where any work is undertaken by the Authority under Sub-section (1), it shall be deemed to have, for the purpose of the execution of such work, ail the powers which may be exercised by or under any law for the time being in force by the local authority or other authority or person referred to in Sub-section (1).
xxx Section 21. Civil Survey and preparation of Master Development Plan.-(1) The Authority with a view to securing planned integrated development and use of land, shall carry out a civic survey of and prepare a Master Development Plan for Jaipur Region.
(2) The Master Development Plan shall precisely define the quality of life that a citizen of Jaipur Region could desirably be expected to lead in (i) medium range perspective of the year 1991 A.D., (ii) long term perspective of the year 2001 A.D. and thereafter, and (iii) such other intermediate stages, as the State Government may direct, balanced and time targeted development to subserve the needs of the growing city of Jaipur and other areas of Jaipur Region, the net work of public utilities, civic amenities, community facilities, housing, communications and transport, the projects or schemes for conservation and development of natural resources and such other matters as are likely to have a bearing on the integrated development of the Jaipur Region and in particular may provide for-
(1) transport and communications such as roads, highways, railways, canals, international airports, air cargo complexes and bus-service, including their development.
xxx Section 22. Zonal Development Plan.-(1) Simultaneously with the preparation of the Master Development Plan or as soon as may be therefore, the Authority shall proceed with the preparation of a Zonal Development Plan for each of the zone into which the Jaipur Region may be divided.
(2) A Zonal Development Plan may-
(a) contain the provision for the development activities to be carried out as mentioned in Sub-section (2) of Section 21;
xxx
(e) in particular, contain provisions regarding all or any of the following matters, namely:-
(v) the alignment of buildings on any site;
Section 38. Making and Contents of Projects and Schemes.- (1) Subject to the provisions of this Act or any other law for the time being in force, the Authority for the purpose of implementing the proposals in any plan may make such projects and schemes for the integrated development of Jaipur Region or any part thereof, as may be considered necessary.
(2) A project or scheme may make provision for all or any of the following matters, namely:-
(i) any of the matters specified in Section 21 and 22;
(ii) acquisition, development reservation and sale or leasing of land for purpose of public utilities such as roads, street, open spaces, parks, gardens, recreation and play grounds, hospitals, dispensaries, educational institutions, green-belts, dairies, housing development, development of markets, shopping centers, commercial complexes, cultural centres, administrative centers, transport facilities and public purposes of all kinds;
(iii) xxx
(iv) xxx
(v) acquisition of land and its development for the purpose of laying out or remodeling of roads and streets pattern, lay out of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications;
(vi) re-construction of plots for the purpose of buildings, roads, drainage inclusive of sewerage, surface or subsoil drainage, sewerage disposal and other similar amenities;
(vii) xxx
(viii) xxx
(ix) xxx
(x) xxx
(xi) xxx
(xii) the suspension, so far as may be necessary, for the proper carrying out of the schemes, of any rule, bye-law, regulation, notification or order made or issued under any law for the time being in force which the legislature of the State is competent to make;
Provided that any suspension under this clause shall cease to operate in the event of the withdrawal of the scheme or on the coming into force of the final Scheme;
(xiii) xxx Section 45. Power to State Government to acquire land.-(1) Where, on any representation from the Authority, it appears to the State Government that, in order to enable the Authority to perform any of its functions or to discharge any of its duties or to exercise any of its powers, or to carry out any of its projects or schemes or development programmes, it is necessary that any land in any part of the Jaipur Region should be acquired, the State Government may acquire the land under and in accordance with the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894).
Section 92. Act to override other laws.- the provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force.
Section 94 Local Authorities to continue to perform duties.(1) Notwithstanding anything contained in this Act, all local authorities in Jaipur Region shall, continue to exercise their powers, perform their functions and discharge their duties which may not be inconsistent with any plan, project or scheme of the Authority.
(2) In the event of failure on the part of any local authority to carry out any plan, scheme, project or any direction given under this Act, the Authority, if it deems fit, for the development of Jaipur Region, with the sanction of the State Government and by an order published in the Official Gazette, may assume of the powers, functions and duties performed by any local authority from such date as may be specified in the order and in that case, such local authority shall, notwithstanding anything contained in any other law for the time being in force, cease to exercise such powers, functions and duties from the said date.
Section 98. Dissolution of the Authority-(1) Where the State Government is satisfied that the purposes for which the Authority was established under its Act have been substantially achieved so as to render the continued existence of the Authority in the opinion of the State Government unnecessary, the Government may, by notification in the Official Gazette, declare that the Authority shall be dissolved with effect from such date as may be specified in the Notification, and the Authority shall be deemed to be dissolved accordingly.
(2) From the said date-
(a) all assets, properties, funds and dues which are vested in, or realizable by the Authority shall vest in, or be realizable by the State Government.
(b) all land vesting in, belonging to or placed at the disposal of the Authority shall revert to the State Government.
(c) all liabilities which are enforceable against the Authority shall be enforceable against the State Government; and
(d) for the purpose of carrying out any development which has not been fully carried out by the Authority and for the purpose of realizing assets, properties, funds and dues referred to in Clause(a), the functions of the Authority shall be discharged by the State Government.
Section 101. Dissolution of the Urban Improvement Trust, Jaipur and savings-(1) Notwithstanding anything contained in the Rajasthan Urban Improvement Act, 1959 (Raj. Act. 35 of 1959), hereinafter referred to as the 'said Act', and the rules, regulations and bye-laws made thereunder, as from the date of the constitution of the Authority for the Jaipur Region under this Act, hereinafter referred to as such constitution-
(a) the urban area of Jaipur shall cease to vest in the Urban improvement Trust, Jaipur (hereinafter referred to as the Trust) and the Trust shall cease to exercise jurisdiction or the function in that area;
(b) the Trust functioning in the area covered by the urban area of Jaipur, immediately before such constitution, shall stand dissolved;
(c) all land, buildings and other immovable properties (together with all interests of whatever nature and kind therein) situated in urban area of Jaipur and vested in the Trust for the purpose of carrying out or undertaking development or improvement in such area, immediately before such constitution, shall pass on to and vest in the Authority so constituted;
(d) all stores, articles or other movable properties belonging to the Trust held by it for the purpose of carrying out or undertaking development or improvement in such area, immediately before such constitution, shall pass on to and vest in the Authority so established.
(e) all assessments, valuations, measurements or divisions made by the Trust immediately, before such constitution in or in connection with such area, shall, in so far as they are not inconsistent with the provisions of this Act, continue and be deemed to have been made under the provisions of this Act, unless and until they are superseded by any assessment, valuation, measurement or division made by the Authority;
(f) all plans, schemes for the development or improvement of any area declared as the urban area of Jaipur and prepared under the said Act shall in so far as they are not inconsistent with the provisions of this Act, be deemed to have been prepared under this Act and any such plan or scheme which was in force immediately before the commencement of this Act, shall continue to be in force so long it is not otherwise dealt with under this Act.
(g) all records and papers belonging to the Trust and relating to the development or improvement of such area, including the plans and schemes and papers relating thereto, as are referred to in Clause (f) shall vest in and stand transferred to the Authority;
(h) every officer or servant serving sunder the Trust immediately before such constitution shall, on or from such constitution, be deemed to have been transferred temporarily for a period of six months to the Authority within which period until otherwise extended by it, the Authority shall, after their screening in such manner as may be determined by regulations, absorb them in the service of the Authority on such posts and with such designations, as the Authority may determine. The Officers and servants so absorbed in the service of the Authority may hold office by the same tenure, at the same remuneration and on the same terms and conditions of service as they would have held if the Authority had not been constituted, and shall continue to so hold unless and until such tenure, remuneration and terms and conditions are duly altered by the Authority. Such of the officers and servants who are not absorbed by the Authority under its service shall be deemed to be surplus officers and servants of the trust and shall be absorbed by the State Government in the service of any local authority or other authority as the State Government may deem fit, on such posts, with such designations on such salary and allowances and on such terms and conditions of service, as may be prescribed but they shall not be absorbed on posts on terms, which are less advantageous to them in the matter of salary and allowances;
Provided that-
(i) any service rendered by any officer or servant so absorbed before such constitution shall be deemed to be service rendered under the Authority; and
(ii) the surplus officers and servants not so absorbed shall be continued in the service of the Authority and their salary and allowances shall be paid out of the Fund of the Authority until they are absorbed by the State Government, as aforesaid;
(i) anything done or any action taken including any appointment, delegation, order, scheme, rule, bye-laws, regulation or from made or notification issued or permission granted under the said Act as far as it is not inconsistent with the provisions of this Act continue in force and be deemed to have been done or taken under the provisions of this Act unless and until it is superseded by anything done or any action taken under the said provisions;
(j) all debts, obligations and liabilities incurred, all contracts entered into, all allotments and transfers of land made, and all matters and things engaged to be done in or as respects the area covered by the urban area of Jaipur, by with or for the Trust for such area shall, immediately before such constitution be deemed to have been incurred, entered into, made or engaged to be done by, with or for the Authority;
(k) notwithstanding anything contained in this Act, the validity of any declaration of application, publication, notification, appointment, order, allotment of land, proposal award, proceeding, consultation, inquiry, certification, compromise, sanction, agreement, notice approval, decision, dispute, withdrawal of any legal proceeding, final scheme or act made, held, issued, entered into, given, taken, decided, drawn up, or done, before such constitution, by or on behalf of the Trust, shall be deemed as if they were made, held, issued, entered into, given, taken, decided, drawn up or done under this Act by or on behalf of the Authority;
(l) all compromises, defence on withdrawals, made in or from any legal proceeding, any offence compounded or any claim admitted, by or on behalf of the Trust before such constitution shall be deemed to have been made by or on behalf of the Authority and may be enforced by or against the Authority as effectively as they could be enforced by or against the Trust before such constitution,
(m) all suits, prosecutions and other legal proceedings instituted by, for, or against the Trust may be continued or instituted by, for, or against the Authority;
(n) all properties movable and immovable and all rights, title and interest in any property vested in the Trust shall vest in the Authority and all such properties in possession of the Trust shall be deemed to be in possession of the Authority;
(o) all rents, fees and other sums of money due to the Trust shall be deemed to be due to the Authority; and
(p) all sums or charges which the Trust was, immediately before such constitution, entitled to levy, assess and recover for or in respect of development or improvement of any land in the urban area of Jaipur, may continue to be levied, assessed and recovered by the Authority under the corresponding provisions of this Act.
(2) Where any acquisition proceedings have been started under the provisions of the Rajasthan Urban Improvement Act, 1959 (Raj. Act No. 35 of 1959) or the Rajasthan Land Acquisition Act, 1953 (Raj. Act No. 24 of 1953) or under any other law for the time being in force for any of the purposes of the Trust, shall be continued and completed under and in accordance with the provisions of such taws as aforesaid."
9. Having set out the relevant provisions of the 74th constitutional amendment, RM Act and JDA Act, we propose to analyze the same not in vacuum but with reference to the submissions of the learned counsel for the parties. While undertaking the examination, we will also advert to Articles 245 and 246 of the Constitution and the various entries of the Seventh Schedule.
10. The 74th constitutional amendment, inserted as Part IXA in the Constitution, came into force on June 01, 1993. The title of the amendment shows that it pertains to municipalities. The amendment was necessitated as it was realized that in many States, municipalities were not able to perform effectively as vibrant democratic units of self-government since they had become weak and ineffective on account of slew of reasons, which included failure to hold regular elections, prolonged suppression and inadequate devolution of powers and functions.
11. In order to enable the municipalities to function as institutions of self-government effectively, Article 243W makes a provision for conferring powers and responsibilities on them. Article 243W provides that subject to the provisions of the Constitution, the legislature of a State may by law endow the municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of power and responsibilities upon them, subject to such conditions as may be specified therein with respect to: preparations of plans for economic development and social justice; the performance of functions and implementation of schemes, as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule. It also provides that subject to the provisions of the Constitution the legislature of State may endow the committees, with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.
12. Though the objects & reasons of the Constitution Amendment Bill, which culminated in the Constitution (74th Amendment) Act, and the provisions of Article 243W, reflect that while the exercise was undertaken to endow the municipalities with powers, authority and responsibilities to enable them to function as institutions of self-government, at the same time, Parliament in its wisdom did not confer exclusive power on the municipalities to deal with the matters listed in the Twelfth Schedule.
13. At this stage, we may recapitulate the submission of the learned counsel for the appellants. It was contended on the basis of Article 243W of the Constitution that the Municipal Corporation is the only authority, empowered to deal with the matters specified in the Twelfth Schedule. Since roads and bridges are included in the Twelfth Schedule, the JDA cannot deal with them any more after the coming into force of the Constitution (Seventy-fourth) Amendment Act.
14. In advancing the aforesaid submission, the learned counsel for the appellants did not attach proper weight to the fact that Article 243W does not whittle down or override the other provisions of the Constitution including Article 246 thereof, which deals with the distribution of the legislative power as between Parliament and State legislatures with reference to the topics covered by the entries of lists I, II & III of the Seventh Schedule. It is well-settled that the various entries in the lists are not the powers of legislation, but are the fields of legislation.
15. In Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and Ors., the Supreme Court held that the entries in the three lists are only legislative heads to delineate the area over which the concerned legislature can operate. In this regard, the Supreme Court observed as follows:-
"............The power to legislate is given to the appropriate Legislatures by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation: they demarcate the area over which the appropriate Legislatures can operate. It is also well settled that widest amplitude should be given to the language of the entries. But some of the entries in the different Lists or in the same Lists may overlap and sometimes may also appear to be in direct conflict with each other. It is then the duty of this Court to reconcile the entries and bring about harmony between them. .....
Similarly, in Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors, the Supreme Court took the same view and held as follows:-
".........The power to legislate is given to the appropriate legislatures by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation; they demarcate the area over which the appropriate legislatures can operate. It is well established that the widest amplitude should be given to the language of the entries. But some of the entries in the different lists or in the same list may overlap or may appear to be in direct conflict with each other. It is then the duty of this Court to reconcile the entries and bring about a harmonious construction......"
In Union of India v. Shri Harbhajan Singh Dhillon the Supreme Court reiterated its earlier view and observed as follows:-
"It must be remembered that the function of the lists is not to confer powers; they merely demarcate the legislative filed........."
Again in Indian Aluminium Co. Ltd. and Anr. v. Karnataka Electricity Board and Ors., it was held as follows:-
"We have given our anxious consideration to the contentions raised for challenging the vires of the amending Act but we are unable to accept the contentions that the Act suffers from any infirmity affecting its vires either on the score of legislative competence or for offending Article 19(1) (g) or Article 14 of the Constitution. It appears that the High Court has given cogent reasons for upholding the vires of the amending Act and for dispelling the contentions raised by the Writ Petitioners and we endorse the view taken by the High Court. We may only indicate here that in deciding the question of legislative competence one must bear in mind that the Constitution is not to be construed with a narrow or pedantic approach and it is not to be construed as a mere law but as a machinery by which laws are made. Such interpretation should be made broadly and liberally. The entries in the Constitution only demarcate the legislative fields of the respective legislature and do not confer legislative power as such."
16. Thus, it is well-established that the various entries in the lists are the heads of legislation. In other words, the entries delineate the legislative fields of the respective legislatures. The actual power to legislate is conferred on the Parliament and the legislatures of the States by Articles 245, 246 and other Articles of the Constitution of India, namely, 247, 248, 249, 250, 252, 253 etc.
17. Drawing support from the aforesaid judgments, the same principle will apply to the entries contained in the Twelfth Schedule of the Constitution. These entries cannot be construed as powers of legislation, but are fields of legislation. It appears that the various entries in the Twelfth Schedule have similarity with/likeness to some of the entries of List-II and List-III. Juxtaposing various entries of the Twelfth Schedule with corresponding entries of List II & List III of the Seventh Schedule will clarify the position:-
Twelfth Schedule List II List III
3. Planning for eco-nomic and social development
20. Economic and social plan-ning
4. Roads and Bridges
13. Communications, that is to say, roads, bridges, ferries and other means of commu-nication not not specified in List 1; municipal tramways; ropeways; inland water-ways and traffic thereon, subject to the provisions of List I and List III with regard to such waterways; vehicles and other than mechanically propelled vehicles.
5. .......
6. Public health, sanitation and and solid waste manage-ment
6. Public health and sanitation; hospitals and dispensaries
7. .......
8. Urban forestry, protection of the en-vironment and pro-motion of ecological aspects.
17-A. Forests.
9. .......
10. ......
11. ......
12. ......
13. ......
14. Burials and bur-ial ground; crema-tions, cremation grounds and electric crematoriums.
10. Burials and bur-ial ground; crema-tions and cremat-ion grounds
15. Cattle ponds; prevention of cru-elty to animals
17. Prevention of cruelty to ani-mals
13. ......
18. The above comparison of the aforesaid entries reflects that several entries of the Twelfth Schedule resemble entries of List II & List III of the Seventh Schedule. It also shows that some of the topics covered by the entries of the Twelfth Schedule are also covered by entries of List II and List III of the Seventh Schedule. Several entries of the Twelfth Schedule appear to be imitative derivative of entries of List 11 and List III of the Seventh Schedule. At the same time, it also appears to us that certain entries in the Twelfth Schedule are of wider amplitude than similar entries in List II and List III. It also seems to us that the Twelfth Schedule has consolidated at one place several entries of the same nature & kind, like the ones which are scattered in List II and List III of the Seventh Schedule. Some of the entries in the Twelfth Schedule are somewhat new entries, which are not found in List II and List III in the same shape & form as incorporated in the Twelfth Schedule. But one cannot ignore similar entries existing in the Twelfth Schedule and Lists II & III of the Seventh Schedule and the fact that in case, Parliament wanted the municipalities to exclusively deal with the matters covered by the entries included in the Twelfth Schedule, it would have deleted these entries included in the Twelfth Schedule, it would have deleted these entries from List II and List III, covering the same field as is covered by the entries of the Twelfth Schedule. But, similar entries have been left in-tact in List II and List III of the Seventh Schedule. Again the fields relating to topics of roads & bridges, public health and sanitation, forests, prevention of cruelty to animals etc. are not only enumerated in the Twelfth Schedule, but are also specified in the Seventh Schedule. The legislature has been left free to act under Article 243W of the Constitution, read with the Twelfth Schedule or/and under Article 246 of the Constitution, read with the Seventh Schedule. It seems to us that the legislature has not given exclusive power to the municipality to deal with the topic of roads & bridges. In fact, it has empowered more than one authority to deal with roads & bridges.
19. Entry 5 of List II also needs to be noticed. It deals with local government, it reads as follows:-
"5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration."
The above entry covers a large area. The State can legislate with respect to any subject in relation to local government, which means, municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities. It is important to note that even local authorities in addition to municipal corporations are also covered by Entry 5 of List II. The JDA undoubtedly is a local authority, which has been created for the purpose of planning, coordinating & supervising the proper, orderly and rapid development of Jaipur City and areas contiguous thereto (see Statement of Objects & Reasons). Planned development of city or town is a governmental function, which is generally entrusted to municipal bodies but with growing complexities of big cities & towns, legislatures have been creating separate development authorities. The JDA, therefore, is not an isolated case of a developmental authority to whom development work of the city has been entrusted. The Delhi Development Authority and various other authorities have been specially created all-over the country for planned development of towns & cities. In Union of India and Ors. v. R.C. Jain and Ors. the Supreme Court recognizing the need for creation of separate town planning or development authorities for individual cities, observed as follows:-
"We see that the Delhi Development Authority is constituted for the specific purpose of 'the development of Delhi according to plan'. Planned development of towns is a governmental function which is traditionally entrusted by the various municipal Acts in different States to municipal bodies. With growing specialization, along with the growth of titanic metropolitan complexes, legislatures have felt the need for the, creation of separate town-planning or development authorities for individual cities. The Delhi Development Authority is one such. It is thus an authority, to which is entrusted by statute a governmental function ordinarily entrusted to municipal bodies. An important feature of the entrustment of governmental function is the power given to the Authority to make regulations (which are required to be laid before Parliament). The power to make regulation is analogous to the power usually given to municipalities to frame by-laws.
A submission of the learned counsel was that the Delhi Development Act itself referred in several places to local authorities as distinguished from Delhi Development authority. It is true that in Sections 12, 15, 30, 31, 34, 36, 42 and some other provisions we find a reference to 'local authority concerned' meaning thereby the ordinary local authority functioning in the area discharging a multiplicity of civic functions. The Delhi Municipal Corporation for example is one such local authority. The Delhi Development Authority is constituted for performing one of the several functions which a local authority may perform. That the local authorities performing other functions are referred to as 'local authorities' in the Act by which the Delhi Development Authority is created, while the Delhi Development is referred to as the Authority, is no ground for holding that the Delhi Development Authority is not a 'local authority' as defined by Section 3(31) of the General Clauses Act. The Delhi Development Authority is endowed with all the usual attributes and characteristics of a 'local authority' and there is no reason to hold that it is not a 'local authority."
20. Taking analogy of the Delhi Development Authority and keeping in view the aforesaid observations of the Supreme Court, we have no manner of doubt that the Jaipur Development Authority is a local authority, created by the legislature. The State legislature under Entry-5 of List II of the Seventh Schedule has endowed powers & responsibilities on the JDA to undertake several functions relating to development of Jaipur City including widening of roads & streets. We will deal with the provisions of the JDA Act relating to the widening of roads & streets in the later part of the judgment.
21. It also needs to be pointed out that Entry-5 of List II of the Seventh Schedule is not subject to Article 243W. Nor the same has been made subject to Twelfth Schedule. Wherever the framers of the Constitution required a particular entry to be subject to any other entry, it has specifically stated so. This is clear from entry 2 of List II, which reads as follows:-
"2. Police (including railway and village police) subject to the provisions of Entry 2A of List I"
We may also notice entry 13 of List II. This entry provides:
"Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles."
As is clear from the above, even Entry-13 of the List II is not made subject to Article 243W of the Constitution or the Seventh Schedule thereto. Thus, the power of legislature to legislate in respect of the fields covered by entries 5 & 13 of List II, is in no way subservient to its power to legislate in respect of the matters covered by Article 243W, read with the Twelfth Schedule.
22. Moreover, just because under Article 243W the State legislature has conferred power on the municipal corporations to construct roads & streets, it does not mean that the other agencies are prevented from constructing roads & streets. It needs to be pointed out that in case the argument of the learned counsel for the appellants, is accepted, then in that event, many of the entries in Lists II & III will be rendered otiose. The topic of economic and social development falls in the Twelfth Schedule. The legislature, therefore, can confer power on the municipality to undertake planning for economic and social development. This, however, does not lead to the conclusion that the legislature acting under entry 20 of List III of the Seventh Schedule, is debarred from conferring power on any other authority in respect of economic and social planning. Again, the topic of public health & sanitation is covered by entry 6 of the Twelfth Schedule. The State legislature, therefore, can empower the municipality to deal with public health & sanitation etc. This, however, does not imply that while legislating with regard to matter of public health & sanitation covered by entry 6 of List II, the legislature cannot entrust to some other authority, matters relating to public health & sanitation. Entry 8 of the Twelfth Schedule covers the field of urban forestry and protection of environment and promotion of ecological aspects. Entry 17-A of List III of the Seventh Schedule deals with forests. In case the legislature confers power on the municipality to deal with urban forestry, it does not mean that the legislature cannot confer power on the forest department to deal with the forests located in the city. Similarly, if the legislature has allowed the municipality to protect the environment and promote ecological aspects, it will be out of harmony with logic & reason to conclude that the Pollution Control Board goes out of operation. Again Entry-2 of the Twelfth Schedule, inter alia, deals with the topic of construction of buildings, It will lead to assured results if it is concluded that it is only the municipality, which can deal with the subject, as many of the bodies dealing with construction of buildings, namely, PWD, Housing Board etc. will become redundant.
23. Articles 245, 246, 243W and the various entries of the Seventh Schedule and Twelfth Schedule are machinery provisions by which laws are made. Article 246 of the constitution, read with Entry 5 of List II of the Seventh Schedule, makes it possible for the State legislature to enact laws not only for the municipalities, but also for the UIT, other local authorities etc. for the purpose of local self government or village administration. In case it is held that the municipal corporations alone have the exclusive domain over the matters specified in the Twelfth Schedule, which inter alia contains topics of local self government, Entry 5 of List II and so many other entries in the various lists of the Seventh Schedule will become redundant and lead to absurd results, uncertainty & friction in the system and serious inconvenience. Such an interpretation must be avoided. Besides, it will block development of the city. Therefore, adopting a reasonable & sensible interpretation, we are of the view that both the Jaipur Municipal Corporation and the JDA can co-exit, function and operate within the assigned spheres.
24. This view finds support from the well-settled rule of interpretation that a just, reasonable and sensible construction of the state should be adopted, Every effort short be made to avoid absurdity and inconsistency in construing the state. A construction leading to anomalies should be shunned. The Supreme Court in Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and Ors., quoted with approval the following passage from Statutory Interpretation, by G.P. Singh (2001 Edition) at P.113):-
"In selecting out of different interpretations 'the court will adopt that which is just, reasonable and sensible rather than that which is none of those things' as it may be presumed 'that the legislature should have used the word in that interpretation which least offends our sense of justice. If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity, and inconsistency. Similarly, a construction given rise to anomalies should be avoided."
25. A statutory interpretation, which results in hardships, serious inconvenience, injustice, anomaly, inconsistency, uncertainty or friction in the system, must be rejected and the construction, which avoids such results, should be preferred. In this regard, we may refer, with advantage, to the decision of the Supreme Court in Bhatia International v. Bulk Trading S.A. and Anr., in which it was held as follows:-
"..... ....... A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the state purports to regulate, has to be rejected and preference should be given to that construction which avoids such results."
26. The learned counsel for the appellants submitted that the Parliament by inserting Part IX A in the Constitution intended the Municipal Corporation to enjoy exclusive jurisdiction over matters covered by Twelfth Schedule. In case the learned counsel for the appellants were right in their submissions and if the Parliament wanted to give exclusivity to the Municipal Corporations in regard to the matters of Local Self Government covered by the Twelfth Schedule, in that event Entry 5 of List II would have been suitably amended by the Parliament by restricting its legislative field by dropping from its fold Improvement Trusts, District Boards, Mining Settlement Authorities, and other Local Authorities. Since Entry 5 of List II was not amended, it clearly reflects that the Parliament did not intend to give exclusive command to the Municipal Corporations in regard to the matters of Local Self Government. The argument of the learned counsel for the appellants would have been correct in case Entry 5 of List II of the Seventh Schedule would have been an follows:-
"5. Local government, that is to say, the constitution and powers of municipal corporations, for the purpose of local self- government or village administration."
But, this is not the actual entry. According to Article 246 read with actual Entry 5 of List II of the Seventh Schedule, the State legislature is empowered to entrust the JDA, being a local authority, with matters relating to local self government.
27. In nutshell, the legal position may be summarized thus: The power to legislate under Article 243W, read with Twelfth Schedule of the Constitution, is not exclusive and independent of the other provisions of the Constitution. The framers of the Constitution in order to clarify the position opened Article 243W with the words "subject to the provisions of this Constitution." This clearly conveys that the power is subject to the other provisions of the Constitution including Article 246 thereof. Therefore, Article 243W does not control Article 246. Rather Article 243W cannot curtail the extent and ambit of Article 246, from which springs the power of Parliament and the legislatures to legislate in respect of the topics assigned to them by the various entries of the Seventh Schedule. That power has not been restricted in any manner whatsoever by Article 243W and the Twelfth Schedule. Therefore, Article 243W is not a super provision and cannot override Entries 5 & 13 of List II of the Seventh Schedule and it does not confer monopoly on the municipalities to deal exclusively with roads, streets etc.
28. There is one more feature of Article 243W. The framers of the Constitution in Article 243W have used the word "may" in conjunction with other words. The relevant phrase reads as follows:-
"the legislature of the State may be law endow......."
29. The apart, at four other places, the word "may" has been used in Article 243W. It is significant to note that the word "shall" has been used in Articles 243Q, 243R, 243S., 243T, 243U, 243V, 243Y, 243ZB, 243ZC, 243ZD, 243ZE, 243ZF & Article 243ZG. Wherever the Parliament intended the provision to the mandatory in nature, it has used the word "shall", the wherever it intended the provision to be directory, it has used the word "may". The Parliament has deliberately used the word "may" at five different places in Article 243W. This indicates that Article 243W is an enabling provision giving discretion to the State legislature to confer or not to confer on the municipalities, powers and responsibilities for performance of functions as may be necessary to enable them to carry out.
30. Besides, even otherwise, Article 243W cannot be construed as mandatory in nature as it does not prescribe any consequences for its non-compliance by the State Legislature to enact laws for endowing the municipalities with powers and responsibilities. Where the law does not prescribe the consequences or does not lay down the penalty for non-compliance, it is indicative of not being mandatory in nature.
31. In fact, the Parliament could not have used the word "shall" ion place of the word "may" in Article 243W, as the legislative topics on which the Parliament and the legislatures can legislate are clearly demarcated by the Constitution. The Constitution does not envisage command being given by the Parliament to a State legislature to make a particular law on a subject which falls within List II of the Seventh Schedule. The constitution is a quasi-federal in nature. This character is manifest from the following features:-
(a) Supremacy of the Constitution.
(b) Division of legislative power between the Parliament and the State legislatures.
(c) Existence of independent judiciary
(d) Inflexible procedure for the amendment to the constitution.
In Re. Article 143, Constitution of India (8), the Supreme Court while dealing with the basic feature of a Federal Constitution, held as follows:-
"In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queen's dominions. On the other hand, the essential characteristic of federalism is "the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other." The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member State from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. The supremacy of the constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of power. Nor is any change possible in the constitution by the ordinary process of federal or State legislation. This the dominant characteristic of the British Constitution cannot be claimed by a Federal constitution like ours."
32. The Indian Constitution demarcates the legislative power of the Parliament and the State legislatures. While a State legislature under Article 246(3) has the exclusive & independent power to make laws with respect to any matter enumerated in List II of the Seventh Schedule, the Parliament under Article 246(1) has exclusive right to legislate with regard to matters enumerated in List I of the Seventh Schedule. Parliament rightly used the word "may" in Article 243W instead of the word "shall", since no mandatory direction to the State legislatures could have been given by the Parliament for endowing the power & responsibilities on the municipalities with respect to several matters including roads & bridges, which not only fall in the Twelfth Schedule but also fall in List II of the Seventh Schedule as to use of the word "shall" would have detracted from the provisions of Article 246(3), read with Entries 5 & 13 of List II of the Seventh Schedule and consequently from the concept of federalism. Viewed from any angle, Article 243W is an enabling provision. Being an enabling provision, it only confers a discretionary power on the State legislature to endow power and responsibilities on the municipalities.
33. In C.A. Rajendran v. Union of India and Ors. the Supreme Court explaining the scope of an enabling provision in the context of Article 16(4) of the Constitution of India, held that it gives discretionary power to the States to make reservations either at the stage of initial recruitment or at the stage of promotion in favour of a Backward class of citizens which in its opinion, is not adequately represented in the service of the State.
34. Relying on the decision of C.A. Rajendran's case (supra), the Supreme Court in State Bank of Indian Scheduled Caste/Tribe Employees' Welfare Association and Anr. v. State Bank of India and Ors. etc. held as follows:-
"... .... Undoubtedly, Article 16(4) enables the Government to make reservations for Scheduled Castes and Scheduled Tribes either at the initial stage of recruitment or at the stage of promotion. This court in the case of C.A. Rajendran v. Union of India 1968 (1) SCR 721 : AIR 1968 SC 507, has stated that Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservations either at the state of the initial recruitment or at the stage of promotion in favour of a Backward Class of citizens, which in its opinion, is not adequately represented in the service of the State."
35. In Ajit Singh and Ors.-Ill v. State of Punjab and Ors., 2000 (1) SCC 430 the Supreme Court while taking stock of various decisions, including the decision in Indra Sawhney v. Union of India, (1992 Supp. (3) SCC 217), held that Article 16(4) is only an enabling provision. The Supreme Court in this regard, observed as follows:-
"In Ajit Singh II v. State of Punjab, (1999) 7 SCC 209, it was stated (at pp. 229-30) relying upon earlier judgments starting from 1963, that Article 16(4) was only an enabling provision and did not impose any constitutional duty nor confer any fundamental right for reservation. The observations at p. 691 by Jeevan Reddy, J. in Indra Sawhney (supra) relied upon in the review applications do not deal with the above issue. It was the view of two Constitution Bench judgments of this Court, one of 1963 in M.R. Balaji v. State of Mysore, AIR 1963 SC 649 and another in 1968 in C.A. Rajendran v. Union of India (supra), and also two-three judgments of this Court in P & T Scheduled Caste/Tribe Employees' Welfare Association (Regd.) v. Union of India, (1988) 4 SCC 147 and State Bank of India Scheduled Caste/Tribe Employees' Welfare Association v. State Bank of India (supra) that Article 16(4) was only an enabling provision. The view was nowhere dissented in Indra Sawhney (supra) much less at p. 691 by Jeevan Reddy, J.
It appears to us that all the nine Judges in Indra Sawhney (supra) were of the same view that Article 16(4) was not in the nature of a fundamental right and was only an enabling provision. In this connection, reference may be made with advantage to the view of Jeevan Reddy, J. (at pp. 667-735) referring to Subba Rao, J. that Article 16(4) was a provision conferring a "power" and referring to Article 16(4) alone as a guarantee and not to Article 16(4); to the view of Sawant, J. (at p. 517, para 43(4)), Pandian, J. (at P. 407, para 168), Thommen, J. (at P. 449, para 284), Sahai, J. (at P. 580) with whom Kuldip Singh, J. agreed, - all expressly stating that Article 16(4) was only as enabling provision. Thus, the majority of the learned Judges expressly stated reservation for backward classes was created a reasonable classification and justified at P. 691, that does not detract from the view the Article 16(4) was only an enabling provision."
36. Taking a cue from the aforesaid decision of the Supreme Court, there is no difficulty in holding that Article 243W, being an enabling provision, has not imposed any constitutional duty on the State Legislature to confer power & responsibilities on the Municipal Corporations. Rather Article 243W enable the State to endow power & responsibilities on the Municipal Corporations. But no binding directions have been issued to the legislatures to endow powers & responsibilities on the municipalities. It is, however, another matter that the State legislature has conferred the powers & responsibilities on the municipalities through the RM Act. At the same time, it does not mean that the State legislature could not have conferred similar powers on any other local authority under Article 246(3), read with List II of the seventh Schedule.
37. The learned counsel for the appellants submitted that it was only the board constituted under Section 73-A of the RM Act, which is empowered to determine whether any land was required for widening of the road and to make a request to the State Government under Section 82 of the RM Act, for acquisition of the land. Since the request was not make by the board, it was contended that the proceedings for acquisition of land, specially the notification under Section 4 of the LA Act, dated July 10, 2002, cannot be sustained. It wag also contended that the power to deal with streets lies with the municipality and the JDA misdirected itself in requesting the State to acquire the land for widening of the road in question. In support of the contentions, out attention was drawn to Sections 73 A, 73 B, 73 C, 82, 92, 98(j), 101 & 161 of the RM Act.
38. Mr. Sharma, learned senior counsel appearing for one of the appellants, pressed into service well known rule adopted in Taylor v. Taylor, which has been followed in Nazir Ahmad v. King Emperor, Basti Sugar Mills Ltd. v. Ram Ujagar and Ors., Banarsi Dass v. BRIG. Maharaja Sukhjit Singh and Anr. Dhanajaya Reddy v. State of Karnataka (& connected appeals), Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors., and several other decisions and submitted that since the RM Act confers power on the Municipal Corporations to widen streets, that power must be exercised in accordance with the provisions of the RM Act or not at all.
39. It was also submitted by the learned counsel that while the RM Act is a special Act, dealing with matters of municipal governance including the matters relating to roads and bridges, the JDA Act is a general Act and, therefore, the field covered by the RM Act, cannot be encroached upon by the JDA.
40. We have scanned the provisions of the RM act and the JDA Act with reference to the submissions of the learned counsel for the appellants. We have not be able to persuade ourselves to accept the submissions of the learned counsel for the appellants.
41. Section 73-A of the RM Act deals with constitution of wards committee. Section 73-B of the RM Act provides for constitution of committee for metropolitan planning. Section 73-C of the RM Act deals with committee for district planning. Section 82 of the RM Act relates to acquisition of land for the purposes of municipality. Section 92 of the RM Act confers power on the municipality to acquire and hold property. It also provides that all properties, which are specified in this Section, including public streets and pavements vest in the board except those properties, which are specially reserved by the State Government.
42. Section 98(j) of the RM Act relates to construction, alteration and maintenance of public streets, culverts etc.
43. Section 101 of the RM Act endows power on the board to provide out of the municipal property, fund for laying new public streets and acquire land for this purpose and for other specified purposes.
44. Section 161 of the RM Act empowers the board to, inter alia, lay and make new public streets.
45. Section 165 of the RM Act gives power to the board to prescribe a line on either side or both sides of the public street.
46. None of the provisions of the RM Act give any indication that exclusive power is being conferred on the municipalities to deal with the public streets. Though, Section 98(j), 101 and Section 161 of the RM Act deal with public streets, they do not give total command to the municipalities over them. As already pointed out, all properties of the nature specified in Section 92, including public streets and pavements, which are not specially reserved by the State Government, vest in and belong to the board. It needs to be noted that vide order of the State Government dated August 24, 2001, all urban roads falling in the municipal limits, stand transferred either to the JDA or the Municipal Corporation. The Government order endows the municipality with the responsibility of the areas within the walled city and the area outside the walled city has been made over to the JDA. Thus, the areas inside the walled city have been specially reserved by the State Government for the Municipal Corporation. But, the area outside the walled city has been specifically reserved by the State Government for the JDA by placing the entire responsibility on it in respect thereof. This being so, the roads outside the walled city clearly do not vest in the Municipal Corporation as per Section 92 of the RM Act, read with the notification of the State dated August 24, 2001.
47. Section 161 of the RM Act does not start with a non obstinate clause and the absence thereof is very significant. None of the provisions of the RM Act contains provisions barring the other local authorities to deal with roads/streets. No provision can be implied either in the RM Act or in Part IXA to bar other authorities from taking up the work of roads & streets. None of the provisions of the RM Act and even Section 161 of the RM Act comes in the way of other authorities taking up the work of roads & streets in case they are so authorized.
48. Shifting the focus to the JDA Act, we find that it empowers the IDA to carry out development and re-development of the city. As per Sub-section (5) of Section 2, development includes provision for amenities. Amenities have been defined by Sub-section (2) of Section 2. Amenities include roads, bridges, streets etc.
49. According to Section 16 of the JDA Act, the JDA is required to perform functions for securing the integrated development of Jaipur Region, including preparation of Master Development Plan, Master Plan for traffic control & management and programmes for smooth flow of traffic and matters connected therewith. Pursuant to the provisions of Section 16, a Master Development Plan for the city of Jaipur was prepared. The Muster Plan conceives of widening of the road in question and entrusts the function to the JDA. Vide order of the Government dated August 24, 2001 all urban areas falling within the municipal limits of Jaipur have been transferred to JDA and Jaipur Municipal Municipal Corporation. Besides, as already pointed out, while the area inside the walled city has been entrusted to the Municipal Corporation, the area outside the walled city has been entrusted to the JDA. Therefore, the roads outside the walled city, are the responsibility of the JDA and are covered by the provisions of Section 16(n) of the JDA Act.
50. Under Section 20(2) of the JDA Act, the JDA is empowered to undertake any work under the Master Development Plan or Zonal Development Plan. Since the work of road widening is according to the Master Development Plan, it is the JDA, which could have undertaken the work.
51. According to Section 38 of the JDA Act, the JDA for the purposes of implementing the proposals of any plan is required to make such projects & schemes for the integrated development of Jaipur Region or any part thereof, as may be considered necessary.
52. According to Clause (ii) of Sub-section (2) of Section 38 of the JDA Act, a project or scheme may make provision for acquisition, development, reservation of land for purposes of public utilities, such as, roads, streets etc.
53. Clause (v) of Sub-section (2) of Section 38 of the JDA Act also empowers the JDa to make scheme for acquisition of land and its development for the purposes of laying out or re-modelling of roads, streets etc. Therefore, the JDA was entitled to request the State Government, for acquisition of the land for widening of the road.
54. Section 45 of the JDA act provides that where any representation by the JDa is made to the State Government and it appears that in order to enable it to perform any of its functions or to discharge any of its duties or to exercise any of its powers, or to carry out any of its projects or schemes or development programmes, it is necessary that any land in any part of the Jaipur Region should be acquired, the State Government may acquire the land under the provisions of the LA Act. Therefore, Section 45 of the JDA Act authorizes the State Government the acquire land, at the request of the JDA, for the purposes of carrying out any project or scheme or any development programme, which includes widening of road.
55. Section 92 of the JDA Act makes the Act to override other laws Section 92 of the JDA Act provides that the provisions of the JDA Act shall have effect notwithstanding anything inconsistent therewith in any other law. Thus, even if there is any provision in the JDA Act, which is inconsistent with the provisions of the RM Act, the JDA Act shall prevail.
56. Thus, having regard to the provisions of the JDA Act we have no hesitation in holding that the JDA is empowered to take up the work of widening of roads & streets in areas outside the walled city.
57. It must be noted that there is no challenge by the appellants to the provisions of the JDa Act, which empower the JDA to take up the work of widening of the roads & streets. This being so, we fail to appreciate as to how the appellants can raise a general plea to the effect that under Part IX A of the Constitution and the provisions of the RM Act it is only the Municipal Corporation, which can take up the work of widening of roads and streets or set up new streets. By a round-about manner, the appellants seek to challenge the provisions of the JDA Act and also seek to drive them out of operation. None of the provisions of the JDA Act relating to roads, streets etc. has been challenged specifically on the ground of its being unconstitutional. The appellants ought to have raised specific pleas in the writ petition challenging the vires of the provisions of the JDA Act, empowering the JDA to take up the work of widening of roads. We are supported in this view by the decision of the Supreme Court in Bank of Baroda v. Rednam Nagachaya Devi, wherein it has been held as follows:-
"It is true that in the Bank of India case, 1998 Supp. 47, this Court did not examine these aspects as to the unconstitutionality of Section 4(e). Only the insufficiency and, indeed, the irrelevance of the test applied for holding that Section 4(e) as discriminatory, were pointed out. While we are sensible of the anxious concern of the learned Judge for the acuteness and magnitude of the problem of agricultural indebtedness it appears to us that even if the question had not been trammeled by a decision of this Court, it would be appropriate to examine the question in a properly constituted action where pleas challenging the vires to the provision had been properly raised and urged."
In Union of India v. E.I.D. Parry (India) Ltd., (2000 (2) SCC 223) it was held that High Court cannot travel beyond the pleadings in declaring a rule to be ultra vires.
58. Thus, from the aforesaid discussion relating to the provisions of the JA Act and other facts the following position emerges:-
1. Under Section 16 of the JDA Act, a Master-Plan of the city of Jaipur was prepared.
(2). The Master-Plan is statutory in nature.
(3) The Master-Plan has placed the responsibility of widening of roads on the JDA.
(4) The order of the Government dated August 24, 2001 has transferred the areas outside the walled city to the JDA.
(5). The JDA is empowered to prepare a scheme under Section 38 for acquisition of land and its development for the purposes of laying-out or remodeling of roads, streets, etc. (6). The JDA under the provisions of the JDA Act, specially Section 38, read with Section 45 thereof, can make a request to the State Government to acquire the land for the public purpose of widening the streets/roads.
7. The JDA by virtue of Section 92 of the JDA Act prevails over the RM Act.
(8) None of the provisions, namely, Section 2(5) dealing with amenities including roads; Section 16 requiring the JDA to prepare a Master-Plan; Section 20(2) empowering the JDa to undertake any work under the Master-Plan and Zonal Development Plan; Section 38(2) 00 which inter alia deals with acquisition, development, reservation and sale or leasing of land for purpose of public, such as roads, streets etc. Section 38(2) (v) empowering the JDA to acquire land for purpose of laying out or re-modelling of roads, streets etc; Section 45 which relates to acquisition of land for development programmes, have been impugned in the writ petition as being violative of any provision of the Constitution, Without there being specific challenge to the constitutionality of these provisions, they cannot be blown over by a side-wind,
59. It was next contended by the learned counsel for the appellants that Article 243ZF of the Constitution repeals the provisions of the JDA Act dealing with public streets. We have considered the argument but we do not find any force in it. Neither the provisions of the Constitution (Seventy fourth) Amendment Act, including Article 243ZF nor the provisions of the RM Act repeal the provisions of the JDA Act dealing with public streets.
60. Article 243ZF provides that notwithstanding anything contained in Part IXA, any provision of law relating to municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth) Amendment Act, which is inconsistent with the provisions of Part IXA, shall continue to be in force until amended or repealed by a competent legislature or the competent authority or unit the expiration of one year from such commencement, whichever is earlier.
61. It appears to us that the JDA Act does not fall within the mischief of Article 243ZF as the JDA Act is not a law relating to municipalities. The JDA Act is mainly concerned with the planned development of the city. The laying out of the roads and their widening is incidental to the planned development of they city. Under Section 101 of the JDA Act, the JDA has taken over what once had belonged to the Urban Improvement Trust (for short "UIT"), which was constituted under the Rajasthan Urban Improvement Trust Act, 1959. The JDA Act is sort of reincarnation of the erstwhile UIT Act. Neither the JDA Act nor the UIT Act can be said to be laws relating to municipalities. The JDA Act falls outside the purview of Article 243ZF and is not affected by the provisions of Article 243ZF. The submissions of the learned counsel for the appellants that after expiration of one year from commencement of Part IX A, the provisions of the JdA act dealing with roads and bridges will cease to have effect, is unsustainable. Even the other provisions of Part IX A of the Constitution, namely, Article 243P, which defines municipalities as meaning an institution of Self-Government constituted under Article 243A; Article 243R dealing with composition of municipalities;, Article 243 S pertaining to constitution and composition of ward committees; Article 243T relating to reservation of seats; Article 243 U fixing duration of municipalities; Article 243V laying down disqualifications for membership; Article 243X empowering the municipalities to impose taxes; Article 243Y relating to setting up of a finance commission; Article 243Z providing for audit of accounts of municipalities; Article 243ZA relating to elections of the municipalities and other Article do not in any way affect the provisions or the JDA Act or the power of the legislature to enact laws conferring powers and responsibilities on the JDA in regard to public streets.
62. Mr. B.L. Sharma, the learned Senior Advocate, appearing for one of the appellants, submitted that the Jaipur Municipal Corporation looks after the aspirations of the people, since it is a body elected by the people and it should be for the Jaipur Municipal Corporation to decide the matters relating to civic life of the people. According to him, the matters relating to roads & streets affect the civic life of the people and, therefore, the Municipal Corporation should be able to decide layout of the roads and streets, including the projects relating to widening of the same. It was also submitted the the JDA not being an elected body, is not apt to decide such questions.
63. We have given our anxious consideration to the aforesaid submission of the learned counsel for the appellants. In case, a state confers power on a statutory body to undertake a particular activity, which relates to development of the city and incidentally that activity impinges on the civic life of the people, it cannot be argued that the matter should have been left to a municipality, Section 4 of the JDA Act shows that the Chairman of the JDA is the Minister in-charge of the urban development of the State of Rajasthan and the Vice-Chairman is the State Minister of the urban development. On of the members of the JDA is Zila Pramukh of the Zila Parishad. Thus, it is evident from the composition of JDA that out of the aforesaid representatives of the people, some are holding key positions in the JDA. We are told that at present five members of the Legislative Assembly have been nominated as members to the JDA, while two public representatives have been nominated as members of the JDA under the provisions of Section 4 of the JDA Act. These representatives of the people can certainly look after the aspirations of the people.
64. As per Sections 3 & 4 of the JDA Act, the Chairman of the JDA is required to supervise and control all the activities of the JDA and is also required to exercise such powers and perform such duties as the JDa may by regulations from time to time determine. This, the Chairman of the JDA, who is people's representative, has the control and supervision of all the activities of JDA and surely can keep in view the aspirations to the people while dealing with matters of development of the city, which have an effect on civil life of the people. Therefore, we have no hesitation in holding that the JDA is fully competent to undertake planning of the city and its development under the JDA Act. The JDA can also undertake projects of road-widening etc.
65. Now, we will deal with the next submission of the learned counsel for the appellants, which is to the effect that there was no material with the JDA and the State Government, on the basis of which it could be said that the land was required for widening of the road. It was also submitted that no survey was undertaken to find out as to whether or not it was necessary to widen the road in question. In the context of the submission, it needs to be noted that under Section 13 of the JDA Act, the State Government constituted a Functional Board called Jaipur Traffic Control Board in the JDA. Jaipur Traffic Control Board consists of 15 members, including Chief Executive Officer of the Jaipur Municipal Corporation. The Jaipur Traffic Control Board, in its 36th meeting held on June 12, 2001, discussed the question of widening to the road in question. All the members agreed that the width of the road should be at least 100 feet instead of 60 feet. It was decided that in order to widen the road from Ram Bagh Circle to Indira Circle upto 100 feet, setbacks of 20 feet on both the sides of the road should be acquired and the provisions of Section 17(4) of the LA Act should be pressed into service. This decision was taken looking to the congestion on the road. It is significant that the meeting was attended by the Chief Executive Officer of the Municipal Corporation. The minutes of the meeting were available to the State Government, in which it was agreed that in view of the congestion on the road in question the land is required to be acquired for the purposes of widening the road. Even the Master Development Plan, prepared by the JDA in 1998, which is a statutory document and has come into operation, records that there was requirement to widen Bhawani Singh Marg between Indira Circle and Shakar Bhawan to 120 feet. It is important to note that the Government is required to approve the Master Development Plan before it comes into operation. Thus, the Government itself was aware of the necessity of widening the road between Indira Circle and Sahakar Bhawan.
66. It may be pointed out that the JdA as early as in 1991 realised the necessity of widening the road in question. This in indicated by the fact that some land was allotted to the Santokba Durlabhji Memorial Hospital in the year 1991 by the JDA on the condition that an undertaking shall be furnished by the hospital to the effect that it will surrender 20 feet of land for widening of the road as and when required. In this regard, the relevant part of the later of the JDA dated 22.2.1991 addressed to the Secretary, Santokba Durlabhji Memorial Hospital, Jaipur may be quoted;-
"(1) The applicant should give an undertaking to surrender 20' wide strip on the Southern side for road widening whenever required."
Pursuant to the aforesaid letter, the appellant hospital furnished the undertaking to the effect that it will surrender 20 feet of land for widening the road when required.
The aforesaid facts not only are important for showing that the JDA had though of widening the road as far back as in the year 1991, but they are also important from another point of view. The appellant hospital having undertaken to surrender 20 feet of land for widening of the road now cannot turn around and challenge the acquisition. The appellant is bound by its undertaking.
67. The widening of the road is of considerable significance for implementation of the Master Development Flan. The city of Jaipur (also known as "Pink City") has a rich heritage. The Pink City was conceived with wide roads. The plans cannot remain on the drawing-board, they need to be implemented in public interest and in the interest of the city. The concept of wide roads arc part of the tradition of the Pink City, which has seeds in history. Jaipur being the capital of the State, is a show- window for the world, depicting what Rajasthan Stands for. One cannot overlook the fact that for development of the economy of the State in general and they city of Jaipur in particular, tourism needs to be promoted. Rajasthan is full of surprises. It has deserts & arid zones and at the same time, it has hills, lakes, forts & 'havelis', which surpass in beauty and aesthetics.' that apart, it has history, tradition and culture. But still only 2 per cent of the tourists visit Rajasthan as compared to tourists traveling to other international destinations, in order to develop tourism, cities should look attractive enough, Wide roads are not only required for preventing congestion, but they are also required from point of view of tourism. Therefore, no one should grudge wide roads in they city. There was enough justification with the JDA and the State Government to acquire the land for the purposes of widening the road in question. The Chief Executive Officer of the Municipal Corporation has not objected to the widening of the road, rather, the minutes of the Traffic Control Board would show that the Chief Executive Officer participated in the decision to carry out widening of the road, Even, at the time of arguments, it was not submitted by the Municipal Corporation that the road in question did not require widening. Realistic & practical approach calls for widening of the arterial road. Demands of lime and vehicular congestion on the road cannot be ignored. It also needs to be pointed out that Bhawani Singh Marg, at most of the places, is 100 feet wide, but between Ram Bagh Circle and Indira Circle, it is only 60 feet wide. Bottle-neck in this stretch can lead to accidents and loss of life. There was sufficient material before the State, to come to a conclusion that the land was required for public purpose of widening the road.
68. The next submission of the learned counsel for the appellants that no notification under Section 4 of the LA Act for widening of the road/street could be issued without the request from the Jaipur Municipal Corporation, needs to be examined. The State under Section of the LA Act is empowered to initiate proceedings for acquisition of land without any request from the Jaipur Municipal Corporation or from any other authority. The power under Section 4 is a plenary power, which is not hedged in by the limitation that it must be exercised at the request of a municipality or a local authority. In Aflatoon and Ors. v. U. Governor of Delhi and Ors. the notification under Section 4(1) of the Land Acquisition Act for acquisition of a vast tract of land for the planned development of Delhi was questioned. It was contended that for the planned development of Delhi action had to be taken under the Delhi Development Act, 1957 by the Chief Commissioner of Delhi and not by the Central Government under the Land Acquisition Act, 1894. The Supreme Court rejecting the contention, held that there was no inhibition in acquiring the land for planned development of Delhi under the land Acquisition Act.
In Stale of Tamil Nadu and Ors., v. L. Krishnan and Ors. the Supreme Court did not accept the contention that the plenary power under Section 4 of the Land Acquisition Act could be curtailed or restricted with reference to the provision of the Tamil Nadu State Housing Board Act, 1961, merely because the land to be acquired was to be made over to the housing board for the purposes of Tamil Nadu State Housing Board Act. The Supreme Court while rejecting the said contention, noticed the decision rendered by Allahabad High Court in Kendriya Karamchari Evam Sahkari Avas Samithi Ltd. v. State of U.P., in which it was held that the Government could acquire any property under the Land Acquisition Act and later develop the same after obtaining the necessary approval of the local authority concerned under the Development Act. The Supreme Court quoted with approval the following observations of the Allahabad High Court:-
"Amendment of the Master Plan is permissible with the approval of the State Government under Section 13 of the U.P. Urban Planning and Development Act, 1973 and in the present case, the Master Plan showing the area in question as green belt was modified with the approval of the State Government which approval no doubt was accorded subsequent to the issue of Notification under Sections 4 and 6. However, as observed by their Lordships of the Supreme Court, the mere fact that till the date of the issue of the Notification under Section 4 the necessary approval of the Government had not been obtained cannot preclude the Government from acquiring the land for planned development under the Land Acquisition Act. Acquisition generally precedes development and consequently the land in question could be acquired in anticipation of the approval of the State Government for the change of the land use of the Master Plan prepared by the Development Authority;"
69. Taking inspiration from the aforesaid decision, it can be safely held that no fault can be found with the issuance of the Notification under Section 4 of the land Acquisition Act by the State Government for the purpose of widening of the road. The acquisition for the public purpose of widening of the road is different from seeking approval for actual widening of the road. Acquisition can precede actual grant of permission to widen the road. Just because there may not be actual permission by the Jaipur Municipal Corporation to widen the road, is no ground to hold the Notification under Section 4 of the LA Act to be invalid. Having said that, we hasten to add that it is not necessary at all to seek permission from the Jaipur Municipal Corporation for widening of the road outside the walled city. Acquisition is valid if it is for public purpose. The State is empowered to acquire any land for public purpose and keep the same in reserve for execution of that public purpose or for any other public purpose, in case exigencies of a situation require. The State can even freeze the land by acquiring it, so that it is available to it for further use for a public purpose. They plenary power of the State under Section 4 of the LA Act cannot be controlled either by Section 82 of the RM Act or Section 45 of the JDA Act which provisions deal with acquisition of property. Thus, we do not find any force in the submission of the learned counsel for the appellants that Notification under Section 4 of the LA Act for widening the road/street can be issued only at the instance and request of the Jaipur Municipal Corporation. The plea is accordingly rejected.
70. Lastly, it was argued on behalf of the appellant in Appeal No. 576/2003 that the acquisition has been made only in respect of a part of the property in contravention of Section 49 of the LA Act. According to the learned counsel, the acquisition of the part of the house-property will render the remaining portion of the house useless. This plea is based on the averments made in para 10(h) (page No. 50) of the writ petition, which reads as follows:-
"h) That lastly, though no the least, some of the objections strongly object to the proposed acquisition of a part of their residential house as such a divisional acquisition would render their remaining part houses incapable of any useful enjoyment as residential house and as such if at all acquisition is to be carried out, it may be done for the whole of their house comprised in plot Nos. 4A, SB-12, SB-17, SB-36 and SB-37."
When the aforesaid plea was raised before us in the appeal, we asked Mr. Chauhan, learned counsel appearing for the JDA, to seek instructions from the authorities as to whether or not they were willing to acquire the entire house-property, including plot Nos. SB-4A, SB-12, SB-17, SB-36 & SB-37, located on Bhawani Singh Marg in Bapu Nagar. Pursuant thereto, in response, the JDA vide its application dated August 29, 2003, has expressed the willingness of the respondents to acquire the entire aforesaid house- property. The appellant by his reply dated September 08, 2003, has submitted that the provisions of the Land Acquisition Act cannot be put in force until the plea raised by him under Section 49 is decided by the competent authority.
71. We have considered the plea of the appellant, the application of the respondents and the reply of the appellant thereto.
72. In order to appreciate the respective stands of the parties, it will be necessary to refer to Section 49 of the LA Act, which reads as follows:-
"49. Acquisition of part of house or building.(1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired:
Provided that the owner may, at any time before the Collector has made his award under Section 11, by notice in writing, withdraw or modify, his expressed desire that the whole of such house, manufactory or building shall be so acquired:
Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section, the Collector shall refer the determination of such question to the Court and shall not take possession of such land until after the question has been determined.
In deciding on such a reference, the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building."
As per the aforesaid provision, it is clear that in case an owner expresses his desire that the whole of the building/house/manufactory should be acquired, no action can be taken under the LA Act in respect of any part thereof. The aforesaid provision also reflects that where a part of the house is proposed to be acquired, the owner must make-up his mind as to whether he would allow the acquisition of the part of his house or he would like the entire house to be acquired. In the even the wishes to permit part acquisition of the house, the acquisition can be proceeded with. In case the owner wishes that the whole of the house should be acquired, he should inform the Collector (Acquisition), of his desire. One the desire is communicated, the procedure laid down in Section 49 should be followed. The question was examined by the Supreme Court in State of Bihar and Anr. v. Kundan Singh and Anr., in which it was held as follows:-
"(15) Thus, it would be seen that the scheme of Section 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by Section 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under Section 18 of the Act. In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District Judge on a reference under Section 18. That being our view, we do not think necessary to consider the respondents' contention that what is acquired in the present proceedings attracts the provisions of Section 49(1)."
Again in Deep Chand and Ors. v. Land Acquisition Officer and Ors., the question relating to acquisition of part of the house came up before the Supreme Court. The Supreme Court in the context of Section 49 held as follows:-
"A reading of the above section shows that a right has been given to the owner of the land to object t the putting of the Act into force when only a part of any house, manufactory or other building is sought to be acquired and call upon the State to acquire whole of such house, manufactory or building. Therefore, what has been give is a right to object only to acquisition of part of the building, etc. without acquiring the whole of the house, manufactory or building."
In Bahori Lal v. Land Acquisition Officer and Ors., the Allahabad High Court held that objection to partial acquisition can be raised both after Notification under Section 4 and declaration under Section 6 of the LA Act.
73. Since the respondents have accepted the desire to the appellant for the acquisition of the entire house, the challenge of the appellant to the Notification under Section 4 of the LA Act does not survive.
74. Before parting, with the case we record our appreciation for the able assistance rendered to us by the counsel on both sides. Large number of decisions were cited by them but we have referred to the ones which have a bearing on the questions in issue.
In view of the aforesaid discussion, the appeals fail and are hereby dismissed, it will, however, be open to the appellant in Appeal No. 576/2003 to move the Collector (Acquisition) for acquisition of the entire house. In case he moves the Collector (Acquisition) for acquisition to the entire house, the Collector shall proceed in accordance with law.