State of M. P. vs Gautam Nagar Housing Society

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2003 Supreme(MP) 1239

2004(1) JLJ 235
Kumar Rajaratnam, C.J. and Dipak Misra, J.
State of M.P. and others v. Gautam Nagar Housing Society,
Bhopal L.P.A. No. 329 of 1999; against the order of Single Bench passed in
W.P. No. 1453 of 1995;
Decided on 4.12.2003.

Advocates:
R.S. Jha, Additional Advocate General for State-appellants.

Headnote:(1) Nagar Tatha Gram Nivesh Adhiniyam, 1973 (M.P.) -- S. 73 -- licence for development of site -- no condition of 15% land to be set aside for in formal sector -- cannot be imposed -- such direction cannot be given -- land cannot be taken out without payment of just compensation.
       The short question that arose before the learned Single Judge was whether the Town and Country Planning Authority has got the power to require the Developer to surrender the land to the extent of 15% of the area, for which development was sought for by a Developer for informal sector. The learned Single Judge held that the condition of surrender of 15% of the land for the purpose of informal sector is contrary to law without payment of just compensation. [Para 2
       Held: The question is, can this be done without acquiring the land and paying just and reasonable compensation.
       In our view, what the State has tried to do is to take over 15% of the land for the informal sector without paying just compensation. However laudable object may be, such an acquisition of large extent of 15% of total land of the sactioned plan being reserved for informal sector, cannot be done without payment of just compensation. (1995) 1 SCC 47 followed. [Paras 10 & 11
       (2) Ownership -- is distinct from management -- authority may have a right of management but ownership always vests with the legal owner. (1995) 1 SCC 47 followed. [Para 14
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ORDER

Rajaratnam, C.J. -- 1. The appellants being aggrieved by the order of the learned Single Judge dated 8.9.1998, in Writ Petition No. 1435/95 (Gautam Nagar Housing Society v. State of M.P. and others), have preferred this Letters Patent Appeal.

2. The short question that arose before the learned Single Judge was whether the Town & Country Planning Authority has got the power to require the Developer to surrender the land to the extent of 15% of the area, for which development was sought for by a Developer for informal sector. The learned Single Judge held that the condition of surrender pf 15% of the land for the purpose of informal sector is contrary to law without payment of just compensation.

3. The facts briefly are that the respondent is a Housing Society. It has 187 members belonging to service class and weaker section of the society. The respondent-housing Society applied for exemption under section 20 of the Urban Land (Ceiling and Regulations) Act, 1976, which was granted to him subject to certain conditions therein.

4. The respondent-Housing Society purchased 2.50 acres of land and applied for diversion and mutation 'under the relevant provisions of the M.P. Land Revenue Code, 1859. The respondent submitted lay out plan to the Town and Country Planning Department. An application was also made for grant of licence under section 24 of the M.P. Vinirdisth Bhrast Acharan Nivaran Adhiniyam, 1982, and the Society wanted to divide the land into plots.

5. When the respondent-Housing Society approached the Town & Country Planning Authority, the Authority directed demarcation of 15% of the land for informal sector. It was further stated by the Authority that the land shall be placed at the disposal of the M.P. Gandi Basti Unmulan Mandal.

6. The State justified in ear-marking 15% of the land before the licence being granted for development of the sites under section.73 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short 'Act of 1973') and claimed that it has power to set aside 15% of the land for informal sector.

7. Annexure P-10 is the requirement of the Housing-Society to leave a site of 15% of the land meant for development. Annexure P-10, which has been translated in English :

Translated copy of An.nexure P-10.

Government of Madhya Pradesh

Department of Housing and Environment

ORDER

Bhopal, dated 26th August, 1987.

1. In accordance with the declared Housing Policy of the State Government, vide No. F. 3-39/32/05, which had been declared vide resolution No. 3380/1652/32-1/81, dated 30th October, 1981, there was provision for securing plots of land for the domestic servants/informal sector (class) in various colonies. In exercise of powers conferred by section 73 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, in the Housing Year the State Government has now decided that all plots of 1 acre or more than 1 acre in which colonies, housing groups are proposed to be developed, at least 15% undeveloped land shall be kept secured for such classes.

2. This secured land shall be given to the Slum Clearance Board or an organisation referred to by the Government, which shall pay a sum equal to the actual cost of purchase of the land to the owned organization of the land.

3. All the layouts in the State shall be accepted only after the above mentioned provision is made.

Sd/-

(R.C. Jain)

Chief Secretary,

Government of Madhya Pradesh,

Department of Housing and Environment."

Section 73 of the Act reads as under:

"S. 73. Powers of State Government to give directions -

(1) In the discharge of their duties, the officers appointed under section 3 and the authorities constituted under this Act shall be bound by such directions on matters of policy as may be given to them by the State Government.

(2) If any dispute arises between the State Government and any authority, as to whether a question is or is not a question of policy, the decision of the State Government shall be final"

8. The definition of 'informal sector' is not clear.

9. However, acc

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2003 Supreme(MP) 1239

2004(1) JLJ 235Kumar Rajaratnam, C.J. and Dipak Misra, J.State of M.P. and others v. Gautam Nagar Housing Society,Bhopal L.P.A. No. 329 of 1999; against the order of Single Bench passed inW.P. No. 1453 of 1995; Decided on 4.12.2003.

Cases Referred (1)

2004(1) JLJ 235
Kumar Rajaratnam, C.J. and Dipak Misra, J.
State of M.P. and others v. Gautam Nagar Housing Society,
Bhopal L.P.A. No. 329 of 1999; against the order of Single Bench passed in
W.P. No. 1453 of 1995;
Decided on 4.12.2003.