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High Court Of Madhya Pradesh
Bishambhar Dayal, C. J. and K. L. Pandey, J.
BENI PRASAD TANDAN AND ORS. - Appellant
Versus
JABALPUR IMPROVEMENT TRUST AND ORS. - Respondents
Misc. Petn. 316 Of 1966
Decided On : 01/16/1970
Where the defects pointed out are not of mandatory character, the protection of section 52 (2) would be available against them. When the State Government has sanctioned a scheme and published it under section 52 (1) of the Act, the scheme cannot be challenged because of such irregularities. AIR 1966 SC 693 & AIR 1963 SC 976 relied on. AIR 1965 SC 895 discussed [Paras 6 & 7]
(2) Town Improvement Act, 1961 (MP) - S. 68 - notice to individual owners - not contemplated by this section.
Section 68 of the Act does not contemplate notices to individual owners. No objection can be taken on that wound. [Para 8]
(3) Town Improvement Act, 1961 (MP) - S. 70 - enquiry by the State Government - is not obligatory.
Under section 70 of the Act, it is open to the State Government, if it so thinks fit, to make an enquiry, but it is not obliged to do so. [Para 9]
(4) Town Improvement Act, 1961 (MP) - S. 37 - scheme for shifting whole-sale market for grains, and Dal and Oil Mills-market committee not formed-no usurpation of functions of the Market Committee or the Municipal Corporation.
The objection was that the Improvement Trust could not be permitted to usurp the functions of the Market Committee under the M.P. Agricultural Produce Markets Act, 1960 and the Municipal Corporation functioning under the M.P. Municipal Corporation Act, 1956.
Held: Quite apart from the consideration that the objects of the M.P. Agricultural Produce Markets Act, 1960 are different from, and not on conflict with, those of the Act, there was, at the material time, no market committee constituted and incorporated under section 12 of the former Act that could undertake this work. Further, although the Municipal Corporation functioning under the M.P. Municipal Corporations Act, 1956 may be entitled to acquire or caused to be acquired, land for purposes of that Act, the scope of town planning under Chapter XXIII thereof is very limited and. what is more, it is not exclusive Section 292 of that Act enacts that where a town planning scheme has been sanctioned under the Town Improvement Act, the Municipal Corporation shall not make or undertake it. [Para 10]
(5) Town Improvement Act, 1961 (MP) - S. 37 - scheme for removing congestion in thickly populated locality by removing whole-sale grain market and Dal and Oil Mills-is public purpose-Constitution of India-Art.31 (2).
(6) Constitution of India - Art. 31 (2) - public purpose - what is.
The expression "public purpose" occurring in Article 31 (2) of the Constitution has no inflexible or rigid connotation enuring for all times, It has been recognised to he elastic in concept, taking colour from the statute in which it occurs and varying in meaning with the time and state of society in which it is required to be considered.
Where the Improvement Trust prepared a scheme for removal of whole sale grain market and Dal and Oil Mills from congested areas of the city and to locate them else where, the scheme is not available as unsupported by public purpose that is to say, general interest of the community.
The Scheme which provides for rehabilitation of persons required to be displaced from a thickly populated area in Jabalpur city for the reason that it is necessary to remove therefrom congestion and the resulting nuisance, insanitary conditions and health hazards, is in the general interest of the community. That being so, acquisition of the land needed for the purpose is for a public purpose. [Para 12]
(7) Town Improvement Act, 1961 (MP) - Ss. 37, 34, 38 & 31 - development scheme -types of - housing scheme - what is - composite scheme is envisaged under the Act.
From the plain language of section 31 of the Act it is clear that any scheme undertaken by an Improvement Trust need not be a one-type pure scheme excluding all or any of the features of any other type. In any such scheme, it is permissible to combine any two or more of such types or any special features thereof. That being so, the scheme in this case cannot be condemned as unsanctioned by the Act only because it does not rigidly conform to the development schemes as provided by section 37 or to any other one-type scheme.
Since housing is not necessarily confined to making provision for residential buildings and is wide enough to include within its ambit the making of provision for any building required for carrying on any business or industry. The Scheme of removing whole-sale grain market and Dal and Oil Mills from congested parts of the city and rehabilitating them in other parts is not a development scheme, but it is really a combination of two types described in sections 34 and 38 of the Act. 1966 JLJ 1 distinguished. [Para 13]
(8) Jurisdiction - power to take an action given by statute - is not taken away because a wrong section is mentioned.
The powers given under a statute do not cease to be available for defending the action though purportedly taken under a wrong section or a mistaken label. AIR 1958 SC 282 & AIR 1964 SC 264 relied on. [Para 13]
( 1 ) THIS order shall dispose of Miscellaneous Petition No. 357 of 1968 also. Both these petitions are directed against- ( i) Development Scheme No. 5 framed by the Jabalpur Improvement trust (respondent 1) and sanctioned and announced by the State government (respondent S) under the provisions of the M. P. Town improvement Trusts Act, 1960 (hereinafter called the Act); (ii) sanction accorded to that Scheme by the State Government and announced by a notification dated January 18, 1965, issued under section 52 (1) of the Act and further sanction given by an order dated september 14, 1965, passed under Section 70 of the Act to acquisition of the land needed for the Scheme; and (iii) all orders passed and notices issued thereafter in regard to the scheme, acquisition of land therefor and delivery of possession of such land, the petitioners have further asked for a writ of mandamus to restrain the respondents from giving effect to the aforesaid Scheme.
( 2 ) THE broad facts that gave rise to these petitioners may be shortly stated. The respondent 1 framed Development Scheme No. 5 for shifting the existing wholesale grain market and Dal and Oil Mills and other like industries situated in crowded localities in the city of Jabalpur to a new site outside the thickly inhabited area, for establishing there other whole-sale and retail markets and also for development thereof residential plots suitable for workers in the aforesaid markets and industries. The Scheme provides for acquisition of 59. 59 acres of land out of khasra No. 204, area 88 acres, of Madhotal belonging to the petitioners, which, it is not now disputed, is situated within the limits of Municipal Corporation, jabalpur. Similarly, the Scheme provides for acquisition of 131. 29 acres of land out of 161. 08 acres belonging to the petitioners in the other petition as detailed in annexure A thereto, All this land too is situated within the limits of the Municipal corporation, Jabalpur. The notification relating to the Scheme was duly published in the M. P. Rajpatra and also in a local paper as required by Section 46 (2) of the act, The petitioners in the two cases raised several objections which were, however, rejected and then the State Government issued the aforesaid notification under Section 52 (1) of the Act and passed the impugned order under Section 70 of the Act. Thereafter, notices were issued under Section 71 (3) of the Act requiring the petitioners to deliver possession of the lands. They raised objections and also requested that their lands be released but the respondent No. 1 did not accede to their request. It was, thereafter, that the petitioners in the two cases filed these petitions.
( 3 ) THE Improvement Scheme No. 5 and the action taken therefor have been challenged in the two petitions inter alia on the following grounds: (i) The Municipal Corporation, Jabalpur, is the authority empowered to regulate markets, including the wholesale grain market, within the limits of the Corporation. Further such a market can be established and regulated under the provisions of the Agricultural Produce Markets Act, 1960. That being so, the respondent 1 could not undertake, or be allowed to usurp, the functions of those authorities and the action taken by it is, therefore, illegal. (ii) Acquisition of land for such a purpose is not a public purpose within the meaning of Article 31 (2) of the Constitution. (iii) The Scheme, as framed, is not an improvement scheme specified in section 31 of the Act. It is not covered by Sections 37 and 39 of that act.
( 4 ) OTHER grounds raised relate to matters of procedure. According to the petitioners, the notices published under Section 46 of the Act were not in accordance with the requirements of that section. Further, while no notice under section 48 (1) of the Act was given to one set of petitioners (M. P. No. 357 of 1906), those served on others were not issued within the prescribed time. Moreover, a reasonable opportunity
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