IMPORTANT POINT
Section 40(3)(jj)(a) only provides guidance to authorities.
Provisions of section 40 may take effect even upon lapsing of designation u/s 20.

Headnote:(a) Constitution of India – Article 31(2) and 19(1)(f) – State can acquire property of private persons under eminent domain – But it must compensate him adequately. (Para 16 to 20)
       AIR 1995 SC 142; AIR 2002 SC 1533; AIR 1986 SC 468; AIR 1973 SC 689; AIR 2003 SC 511 – Relied upon
       Civil Appeal No. 1034 of 1967 – Referred
       (b) Gujarat Town Planning and Urban Development Act, 1976 – Sections 45(2)(a)(b)(c), 52(1)(iii), 67(b), 80 and – Town planning scheme providing for pooling the entire land covered by the scheme and thereafter re-shuffling and reconstituting of plots; assessment of market value of the original plots and final plots – Any loss or injury or gain suffered by land owner to be determined – Re-constitution of plots in accordance with Section 81 permissible vide Section 45(2)(a)(b)(c) and Section 52(1)(iii) – Section 67(b) read with Section 80 provides for compensating any person suffering injury due to re-constitution – Compensation to be determined in accordance with section 84 – There is no vesting of land in local authority by re-constitution and readjustment of plots. (Para 23, 24)
       AIR 1969 SC 634; AIR 1967 SC 1373 – Relied upon
       (c) Constitution of India – Article 31A, Proviso – With deletion of Articles 31(1) and 19(1)(g) right to property no longer fundamental right – Right to compensation on compulsory acquisition still available (Para 27)
       AIR 1954 SC 170; AIR 1970 SC 564; AIR 1965 SC 1017; AIR 1967 SC 637; AIR 1980 SC 1955 – Referred
       (d) Constitution of India – Article 300-A – Depriving a person of his property – Authority of law – Act 1987 being an authority of law, acquisition thereunder not ultra vires. (Para 28)
       AIR 1969 SC 634; AIR 1986 SC 468 – Relied upon
       (e) Section 40 r/w section 20 – Development plan is a macro plan whereas Town planning scheme is a micro plan – Designation of lands under Development plan lapses u/s 20 after ten years if no acquisition by agreement is made – Notwithstanding, town planning scheme will have to include land for roads, open spaces, gardens under Section 40(3)(e), reservation of land for accommodation to members of socially and economically backward classes of people under section 40(3)(j) and Section 40(3)(jj)(a). (Para 29)
       (f) Section 40(3)(jj)(a) – Sale upto the extent of 15% is from the total area covered under the scheme and not in respect of every plot of land – For generating financial resources for the development of infrastructure, the saleable plot for residential, commercial and industrial use are allotted and re-constituted – Section 40(3)(jj)(a) only provides guidance to authorities. (Para 30, 31, 36)
       AIR 1968 SC 303; AIR 1969 SC 634; AIR 2008 SC 1771 – Relied upon
       AIR 2003 SC 511 – Distinguished
       (g) Interpretation of statute – Hardship of an individual – Cannot be a ground to strike down a statutory provision. (Para 37)
       AIR 1966 SC 529; (2009) 16 SCC 659; AIR 2013 SC 30 – Relied upon
       Facts of the case:
       All these matters relate to the validity and issues of interpretation of Section 40(3)(jj) of the Gujarat Town Planning and Urban Development Act, 1976 and application of certain statutory provisions of the Gujarat Town Planning and Urban Development Rules, 1979.
       The basic question that has been raised on behalf of the tenure- holders (Association of land owners) is that whether the provisions contained in Sections 40(3)(jj) of the Act 1976 are ultra-vires of Articles 14, 19 and 300-A of the Constitution of India, 1950 and have also challenged the action on the part of the Municipal Corporations (Ahmedabad and Surat) for declaring the intention to frame town planning schemes by issuing notifications, and further to hold that the action of the Municipal Corporations to take away land of the tenure-holders to the extent of 50% without paying any compensation as ultra-vires and further challenged the respective resolutions of the State Government in this regard.
       Finding of the Court:
       The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.

JUDGMENT

Dr. B.S. CHAUHAN, J. –

1. Civil Appeal Nos.1542-44 of 2001 have been preferred challenging the impugned judgment and order dated 24.11.2000, passed in Special Civil Application Nos.1189, 4494 and 4659 of 1998 by the High Court of Gujarat at Ahmedabad, wherein the Writ Petition filed by the respondents has been partly allowed holding that Section 40(3)(jj)(a) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the 'Act 1976') would be operative for the land other than the land covered by Section 20(2) of the Act 1976, though upheld the validity of Section 40(3)(jj) of the Act 1976. Civil Appeal Nos.1545-50 of 2001 have been preferred by the State of Gujarat against the same judgment raising the grievance to the same extent.

Civil Appeal Nos.1551-56 of 2001 have been filed by the Ahmedabad Urban Development Authority (hereinafter referred to as `AUDA') against the same judgment passed in same cases alongwith Special Civil Application Nos.4859, 5934, 7476 of 1998 and 4271 of 2000. Civil Appeal No. 1864 of 2014 has been filed against the impugned judgment and order dated 9.10.2009 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.10912 of 2009, wherein the matter stood disposed of in terms of the subject matter in appeals referred to above. In Transferred Case (C) Nos.12-13 of 2010, Writ Petition Nos.2879 and 2880 of 2009 had been filed by the tenure holders/ petitioners before the High Court of Gujarat and as the same factual and legal issues are involved therein, the petitions stood transferred to this court.

2. As similar factual and legal issues are involved in all the cases for convenience T.P. (C) Nos. 12-13 of 2010 and Civil Appeal Nos. 1542-44 of 2001 are taken to be the leading cases. All these matters relate to the validity and issues of interpretation of Section 40(3)(jj) of the Act 1976 and application of certain statutory provisions of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as the 'Rules 1979'). The basic question that has been raised on behalf of the tenure- holders (Association of land owners) is that whether the provisions contained in Sections 40(3)(jj) of the Act 1976 are ultra-vires of Articles 14, 19 and 300-A of the Constitution of India, 1950 (hereinafter referred to as the 'Constitution') and have also challenged the action on the part of the Municipal Corporations (Ahmedabad and Surat) for declaring the intention to frame town planning schemes by issuing notifications, and further to hold that the action of the Municipal Corporations to take away land of the tenure-holders to the extent of 50% without paying any compensation as ultra-vires and further challenged the respective resolutions of the State Government in this regard.

The main contention of the respondents before the High Court was that by way of the impugned legislation, the appellants have designed a circuitous method to acquire land without paying any amount of compensation. The ancillary ground urged is that the land which was not acquired on payment of compensation under Section 20 of the Act 1976 cannot again be acquired indirectly and without payment of compensation by introducing the impugned legislation enabling Authority to prepare a town planning scheme and reserve the land to the extent of specified percentage for public purposes like roads, parks, play grounds, gardens and open spaces.

Further, as per Section 40(3)(jj)(a)(iv) of the Act, 1976 the sale of land by the Appropriate Authority for raising money for the purpose of providing infrastructural facilities is beyond legislative competence being outside the purview of Entry 18 of List-II and Entry 20 of the concurrent list contained in 7th Schedule to the Constitution. Moreover, compensation payable under Section 82 of the Act, 1976 in respect of property or right injuriously affected by the scheme, on the basis of market value calculated on the date of issue of inte

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2014 Supreme(SC) 418

IMPORTANT POINTSection 40(3)(jj)(a) only provides guidance to authorities. Provisions of section 40 may take effect even upon lapsing of designation u/s 20.

Cases Referred (17)

IMPORTANT POINT
Section 40(3)(jj)(a) only provides guidance to authorities.
Provisions of section 40 may take effect even upon lapsing of designation u/s 20.