INDORE DEVELOPMENT AUTHORITY versus BURHANI GRIH NIRMAN SAHAKARI SANSTHA MARYADIT SNEH NAGAR AND OTHERS on 3 March 2023

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SUPREME COURT REPORTS[2023] 2 S.C.R. 84

[2023] 2 S.C.R.

AINDORE DEVELOPMENT AUTHORITY

v.

BURHANI GRIH NIRMAN SAHAKARI SANSTHA MARYADITSNEH NAGAR AND OTHERS

B(Civil Appeal No. 5071 of 2022)

MARCH 03, 2023

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973– ss. 50 and 54 – Land Acquisition Act, 1894 – ss.4, 5A and 6 –CIndore Development Authority (IDA) passed a resolution u/s.50 ofAct, 1973, declaring its intention to frame a residential schemeproviding for other connected land uses – IDA published the saidscheme – State Government by order delegated its power to theDistrict Collector to act as Under Secretary – IDA started mutualDnegotiations with the landowners for procurement of their land forthe scheme – Mutual negotiations failed – IDA moved the Collectorfor acquisition of the land – Notification u/s.4 of the 1894 Act waspublished, and report u/s.5A of the 1894 Act was filed before theCollector for approval – Declaration u/s.6 was published – In year1997, some lands were released from scheme – The notificationsEu/s.4 and s.6 of the 1894 Act was challenged before the SingleJudge of the High Court, which in turn quashed the scheme framedby the IDA (on the ground that the same had lapsed in view of s.54of the 1973 Act) as well as the land acquisition proceedings initiatedby the State Government – The IDA preferred appeals before theFDivision Bench of the High Court, which confirmed the order of theSingle Judge – On appeal, held: Within three years various stepswere taken for implementation of the scheme including the steps toacquire the land by negotiations and thereafter approaching theState Government to acquire the land, the High Court has erred indeclaring that the scheme has lapsed – High Court has adopted tooGnarrow a meaning while interpreting s.54 of 1973 Act – Furtherheld, merely because s.5A has not been mentioned in the order ofState Government delegating its power, the entire acquisitionproceedings cannot be declared illegal – When the Collector hasexercised the power of the appropriate Government and aH

INDORE DEVELOPMENT AUTHORITY v. BURHANI GRIH NIRMANSAHAKARI SANSTHA MARYADIT SNEH NAGAR

declaration u/s.6 has been issued after considering the report onthe objections u/s.5A, the High Court has seriously erred in quashingthe entire acquisition proceedings – Also, it cannot be said that therelease of the land was arbitrary and/or with an object of unduefavour to those persons whose lands have been released – Releaseof the land which according to the authority was for valid reasonsor valid grounds has not prejudiced or affected the integrity of thescheme – As the integrity of the scheme remains the same, thus, thefinding of High Court is unsustainable.

Allowing the appeal, the Court

HELD:1. When within three years various steps were takenfor implementation of the scheme including the steps to acquirethe land by negotiations and even thereafter on failure to acquirethe land by negotiations approaching the State Government toacquire the land under the Land Acquisition Act, the High Courthas erred in declaring that the scheme has lapsed under section54 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam,1973. The High Court has adopted too narrow a meaning whileinterpreting and/or considering section 54 of the Adhiniyam. [Para11][113-G-H]

2. So far as quashing and setting aside the entire acquisitionproceedings including sections 4 & 6 notifications issued underthe provisions of the Land Acquisition Act with respect to thelands in question on the ground that there was no properdelegation of power to the Collector with regard to Section 5A ofthe Act, is concerned, it is required to be noted that in the presentcase, the State Government vide its letter dated 22.3.1985delegated its power to the District Collector as Deputy Secretaryof the Revenue Department and to the Commissioner of thedivision to act as Secretary of the Revenue Department and toadjudicate matters related to land acquisition by exercising powersgiven under Sections 4, 5, 6 and 17 of the Act, 1894. Merelybecause Section 5A has not been mentioned in the said order,the entire acquisition proceedings including notifications underSections 4 & 6 of the Act, 1894 and more particularly thedeclaration which was issued after considering the report/objections under section 5A cannot be declared illegal. [Para12][114-B-D]

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A3. A declaration under Section 6 of the Act, 1894 could beissued only after the report submitted under Section 5A has beenconsidered by the appropriate government. Under Section 5A ofthe Act, the objections are required to be considered by theCollector, i.e., the Collector of a District including a DeputyCommissioner and any other officer especially appointed by theBappropriate government to perform the functions of a Collectorunder the Land Acquisition Act. In the present case, apart frombeing specially appointed by the appropriate government toperform the functions of a Collector, the authority who hasconsidered the objections under Section 5A is the Collector of aCDistrict. Even the State Government vide its circular dated6.03.1987 conferred power on the Deputy Collectors forexercising the functions of the Collector for acquisition of theland in their respective areas. [Para 12.1][114-D-F]

4. When the Collector has exercised the power of theDappropriate government and a declaration under section 6 of theAct has been issued after considering the report on the objectionsunder Section 5A of the Act, the High Court has seriously erredin quashing and setting aside the entire acquisition proceedingson the aforesaid ground. [Para 12.3][116-F]

E5. So far as the third ground on which the scheme and theentire acquisition proceedings have been set aside, namely, thehuge and big chunk of land out of the total land sought to beacquired by the Development Authority which has been released,is concerned, it is required to be noted that out of the total landacquired, 68.11% of the land has been developed and 31.89%Fhas not been developed due to interim orders passed by theCourts. Even otherwise, it is required to be noted that out of thetotal land covered under the scheme, i.e., 332.616 hectares(277.853 hectares of land acquired through award plus 44.763hectares of the land owned by the Authority), land has beenGreleased for various purposes to the extent of 54.660 hectaresand still the remaining land would be to the extent of 267.956hectares out of which the land involved in the present appealswould be to the extent of 85.430 hectares. According to the H

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Development Authority, 111.156 hectares of the land coveredunder the scheme was released in favour of Housing CooperativeSocieties because the object of the housing societies and thescheme was the same. According to the Development Authority,the Authority/State Government had released the land only ofthose societies who had either developed or started developmentof colonies or had acquired the title to the land or had obtainedexemption under section 20 of the Urban Land (Ceiling &Regulation) Act, 1976 before publication of the final scheme undersection 50(7) of the Adhiniyam. According to the DevelopmentAuthority, 104.524 hectares of land covered under the schemewhich was released from the scheme, the land use of the saidland was either agricultural or regional park. Release of the landhaving area of 46.116 hectares of land was in response toobjections under section 5A of the Act because of certain reasonslike existing houses, religious places, different land use etc. [Para13][116-G-H; 117-A-D]

6. It cannot be said that the release of the land was arbitraryand/or with an object of undue favour to those persons whoselands have been released. As rightly submitted that evenotherwise such lands were to be acquired for residential, parkand industrial purposes, release of the land which according tothe authority was for valid reasons or valid grounds has notprejudiced or affected the integrity of the scheme. The end resultof the release of some land is that the total area of the scheme islesser to that extent but the integrity of the scheme remains thesame. At this stage, it is required to be noted that some of thelands have already been used by the authority for the purpose ofa park which is used for the benefit of local people. Under thecircumstances, the third ground on which the scheme and theentire acquisition proceedings have been quashed by the HighCourt does not stand on its legs and the said finding isunsustainable. [Para 13.1][117-E-G]

Rajasthan State Industrial Development and InvestmentCorporation v. Subhash Sindhi Cooperative HousingSociety, Jaipur (2013) 5 SCC 427 : [2013] 4 SCR 978;Union of India v. Bal Ram Singh (1992) 2 Supp SCC136; Sube Singh v. State of Haryana (2001) 7 SCC

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A545; Jagdish Chand v. State of Haryana (2005) 10 SCC162; Dharam Pal v. State of Haryana (2009) 2 SCC397 : [2008] 17 SCR 564 – referred to.

Sanjay Gandhi Grih Nirman Sahakari SansthaMaryadit v. State of M.P. & Others AIR 1991 MP 72;BAdarsh Nagar Grih Nirman Sahkari SansthanMaryadit, Bhopal v. State of M.P. and Others 2004 (1)M.P.L.J. 539 : 2003 SCC OnLine MP 329 – referredto.

From the Judgment and Order dated 28.08.2014 of the High CourtEof Madhya Pradesh at Indore in WA No. 873 of 2008.

With

Civil Appeal Nos. 5099, 5074, 5075, 5076, 5078, 5079, 5081, 5080,5082, 5084, 5085, 5087, 5088, 5090, 5091, 5093, 5092, 5094, 5095, 5096,5097, 5098, 5101, 5103, 5104, 5105, 5106, 5077, 5083, 5086, 5089, 5100Fand 5102 of 2022.

Balbir Singh, ASG, Sanjay Kapur, Ms. Megha Karnwal, ArjunBhatia, Aashish Kumar, Ms. Akshta Joshi, Lalit Rajput, Naman Tandon,Samarvir Singh, Prasenjeet Mohapatra, Shyam Gopal, Ms. MonicaBenjamin, Prahlad Singh, Advs. for the Appellant.

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Basava Prabhu S. Patil, N. K. Mody, Subash Samvatsar, R.N.Mishra, Sr. Advs., Ajay Choudhary, Prabudh Gaur, Mrs. Pragya Baghel,R.N. Pareekh, Mishra Saurabh, Ms. Aarushi Singh, Sunny Choudhary,Puneet Jain, Ms. Christi Jain, Umang Mehta, Ms. Shruti Singh, YogitKamat, Mann Arora, Ms. Shipra Singh, Ms. Pratibha Jain, Nitin S.

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Tambwekar, Archit Katlana, Seshatalpa Sai Bandaru, Niraj Sharma,Sumit Kumar Sharma, Ms. Mahima Sharma, Ms. Tanya Raizada, MayankKshirsagar, Mahendra Thakur, Sudhir Shah, Balaji Srinivasan, Ms. MrinalElker Mazmudar, Saurabh Singh, Abhijeet Pandove, Ms. AnuradhaMishra, Rahul Kaushik, Hitesh Kumar Sharma, S.K. Rajora, AkhileshwarJha, Deepak Namdari, K. Rajeev, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Delay condoned. Substitution allowed. Abatement is set aside.Cause title be amended accordingly.

1A. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 28.08.2014 passed by the High Court of MadhyaPradesh at Indore in Writ Appeal No. 873 of 2008 and other connectedwrit appeals, by which the Division Bench of the High Court has dismissedthe said appeals, confirming the common judgment and order dated10.12.1998 passed by the learned Single Judge whereby the learnedSingle allowed the respective writ petitions against finalisation of SchemeNo. 97 under Section 50 of the Madhya Pradesh Nagar Tatha GramNivesh Adhiniyam, 1973 (hereinafter referred to as the ‘Adhiniyam’)and the subsequent land acquisition proceedings undertaken by the Stateof Madhya Pradesh under Sections 4 and 6 of the Land Acquisition Act,1894 (hereinafter referred to as the ‘Act, 1894’), the Indore DevelopmentAuthority has preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are asunder:

The Indore Development Authority (hereinafter referred to asthe ‘IDA’) passed a Resolution under Section 50(1) of the Adhiniyam on13.03.1981 declaring its intention to frame Scheme No. 97 – a residentialscheme providing for other connected land uses. For the sake ofconvenience, Scheme No. 97 was divided into four parts, i.e., Part I, II,III & IV. The declaration of intention of the said scheme was furtherpublished in the form of public notice on 10.07.1981. Vide its order dated24.12.1983, the State Government empowered all the Collectors andDivisional Commissioners to act as ex-officio Deputy Secretaries of theDepartment of Revenue, Government of Madhya Pradesh and ex-officioSecretary of the said Government respectively, for disposal of the cases A

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Aunder Sections 4, 5 6 & 17 of the Act, 1894. After completing variousformalities, the IDA published Scheme No. 97 on 08.06.1984 as requiredunder Section 50(7) of the Adhiniyam and the Scheme was also publishedin the Official Gazette on the said date.

2.1 According to IDA, the State of Madhya Pradesh in exerciseBof its powers conferred under Article 166(2) & (3) of the Constitution ofIndia and in accordance with the Madhya Pradesh Government Rulesof Business framed by the Governor, Madhya Pradesh, delegated itspower to the District Collector to act as Under Secretary, RevenueDepartment, Government of Madhya Pradesh. Vide its order dated6.03.1987, the State Government gave powers to the Deputy CollectorsCfor exercising functions of the Collectors for acquisition of land in theirrespective areas.

According to IDA, as per section 56 of the Adhiniyam, the IDAstarted mutual negotiations with the landowners for procurement of theirland for Scheme No. 97. Since the mutual negotiations failed, the IDADvide its letter dated 4.06.1987 moved the Collector for acquisition of theland.

2.2 Notification under section 4 of the Act, 1894 in respect of theland for Scheme No. 97 was published in the Official Gazette and thenotification was then also published in the two daily Hindi NewspapersEon 14.08.1987. Further, the publication was affixed on different datesand lastly on 09.10.1987.

2.3 The Deputy Collector and Land Acquisition Officer filed itsreport under section 5A of the Act, 1894 before the Collector for approvaland also submitted the notification under section 6 of the Act, 1894 forFsignature of the Collector. The same was duly approved by the Collector.

2.4 The Deputy Collector filed its reports in respect of villageTejpur Garbari and also in respect of village Pipaliyarao under section5A of the Act, 1894 and also filed an approval order of the Collector, forissuance of notification under section 6 of the Act, 1894. DeclarationGunder section 6 of the Act, 1894 was published in the Official Gazette on7.10.1988 and the said declaration was then also published in dailynewspapers on different dates and lastly on 16.12.1988. The Collectorthen submitted its report to the Commissioner under section 5A of theAct, 1894 with the recommendation to reject the objections and to grant H

approval for issuance of notification under section 6 of the Act, 1894,which was approved by the Commissioner vide its letter dated 6.12.1988.

2.5 After the publication of the declaration under section 6 of theAct, 1894 and during the pendency of the land acquisition proceedingsbefore the Collector, some of the landowners whose lands were acquiredfor Scheme No. 97 filed writ petitions before the High Court and obtainedinterim orders against dispossession of their land. Some writ petitionswere filed after the declaration of the award. The Collector, Indore madehis award in respect of the acquired land on 6.03.1991. That the originalwrit petitioners filed a Miscellaneous Petition before the learned SingleJudge of the High Court challenging the notifications under sections 4 &6 of the Act, 1894 and prayed that the entire acquisition proceedings bequashed. The original writ petitioners also prayed that Scheme No. 97prepared by the IDA be quashed and their land be ordered to be deletedand released therefrom. That in the year 1997, some lands were releasedfrom Scheme No. 97. The IDA during the pendency of the writ petitionsfiled a clarification regarding land release out of Scheme No. 97 pointingout the justification. The aforesaid release was sought challenging SchemeNo. 97 on the following grounds:

(i) That the Scheme framed by the appellant under Section 50(7)of the Adhiniyam was not implemented within three years andtherefore it stood lapsed, by virtue of Section 54 of the Adhiniyam.

(ii) That the notification issued under Section 6 was not inaccordance with law inasmuch as the objections invited underSection 5-A were not decided by the Competent Authority. Therewas also a plea of hostile discrimination inasmuch as various parcelsof lands were released from acquisition indiscriminately.

2.6 The learned Single Judge by a common judgment and orderdated 10.12.19998 allowed the respective writ petitions and quashed theScheme framed by the IDA as well as the land acquisition proceedingsinitiated by the State Government, mainly on three grounds, namely,:-

(i) The objections invited under Section 5-A of the L.A. Act werenot decided by the Competent Authority, i.e., State Government.

(ii) There was hostile discrimination against the respondents bythe appellant and the State of Madhya Pradesh inasmuch as thevarious parcels of land owned by several other persons andsocieties forming part of the same scheme were released by the AB

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92SUPREME COURT REPORTS

Aappellant violating the fundamental rights of the respondents asguaranteed under Article 14 of the Constitution of India.

(iii) That in view of Section 54 of the Adhiniyam, the Schemelapsed as it was not implemented within three years from the dateof its publication as provided under Section 54 of the Adhiniyam.

B2.7 Feeling aggrieved and dissatisfied with the common judgmentand order passed by the learned Single Judge, quashing and setting asidethe entire acquisition proceedings as well as quashing and setting asideScheme No. 97 on the ground that the same had lapsed in view of Section54 of the Adhiniyam, the IDA preferred the writ appeals before theCDivision Bench of the High Court. By the impugned common judgmentand order, the Division Bench of the High Court has dismissed the saidappeals, which has given rise to the present appeals.

3. Shri Balbir Singh, learned Additional Solicitor General of India,assisted by Shri Sanjay Kapur, learned counsel, appearing on behalf ofDthe IDA has vehemently submitted that in the facts and circumstancesof the case, the learned Single Judge as well as the Division Bench ofthe High Court have materially erred in quashing and setting aside theentire acquisition proceedings as well as Scheme No. 97 framed underthe Adhiniyam.

E3.1 It is further submitted by the learned Additional Solicitor Generalthat the learned Single Judge allowed the writ petitions declaring SchemeNo. 97 as illegal and invalid and quashed and set aside the entire acquisitionproceedings under the Act, 1894, mainly on three grounds, namely:-

(i) That there was no delegation of power by the State GovernmentFwith regard to Section 5-A of the Act, 1894 to Collector;(ii) That IDA failed to take substantial steps to implement thescheme within a period of three years from the date of finalpublication as envisaged under section 54 of the Adhiniyam; and

(iii) That huge and big chunk of land, out of the total land sought toGbe acquired by the Authority, has been released.

3.2 Insofar as the finding recorded by the learned Single Judge,as confirmed by the Division Bench, that there was no delegation ofpower to the Collector with respect to Section 5-A of the Act, 1894 isconcerned, learned Additional Solicitor General has submitted as under:

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(i) That Section 5-A of the Act, 1894 provides for inviting andhearing of objections from the landowners by the appropriateauthority and then preparation of report thereof. It issubmitted that insofar as the decision on the report by theAppropriate Government is concerned, it is taken undersection 6 of the Act, 1894. Section 5-A merely declaresthat the decision of the Appropriate Government on thereport would be final. Thus, Section 5-A does not requireany further delegation of power. The decision on the reportis required to be taken under Section 6 of the Act, 1894.

(ii) Further, it is submitted that the State Government vide itsletter dated 22.03.1985 delegated its power to the DistrictCollector to act as Dy. Secretary of the RevenueDepartment and to the Commissioner of the Division, toact as Secretary of the Revenue Department, to adjudicatematters related to land acquisition by exercising powers givenunder Sections 4, 5, 6 and 17 of the Act, 1894. A barereading of Sections 4 to 6 of the Act, 1894 would revealthat the power given to the District Collector and to theCommissioner under these sections are consequential andcannot be separated inasmuch as one section leads toanother, which finally culminates in the passing of declarationunder Section 6 of the Act, 1894.

(iii) Further, a declaration under section 6 of the Act, 1894 couldbe passed only after the report submitted under section 5-A has been considered by the appropriate government. It isrespectfully contended that even though the order dated22.03.1985 does not specifically mention Section 5-A, thesame is implied in the said order.

(iv) Under section 5-A of the Act, the objections are requiredto be considered by the Collector. Section 3(c) of the Act,1894 defines Collector as under:

“3(c) The expression Collector means the Collector ofa District, and includes a Dy. Commissioner and anyOfficer specially appointed by the appropriate Govt. toperform the functions of a Collector under this Act.”

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A3.3 It is contended that in the present case, apart from beingspecially appointed by the appropriate Government to perform thefunctions of a Collector, the Authority who has considered the objectionsu/s 5-A is the Collector of a District. The definition of the Collector is aninclusive one and means the Collector of the District and includes Dy.Commissioner as well. Further the State Government vide its circularBdated 06.03.1987 conferred power to the Dy. Collector for exercisingfunctions of the Collector for acquisition of land in their areas.

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3.4 It is further contended that Article 166 of the Constitution ofIndia provides that all executive action of the Government of a Stateshall be expressed to be taken in the name of the Governor and ordersCand other instruments made and executed in the name of the Governorshall be authenticated in such manner as may be specified in rules to bemade by the Governor, and the validity of an order on instruction whichis so authenticated shall not be called in question on the ground that it isnot an order or instrument made or executed by the Governor.

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3.5 It is submitted that therefore the learned Single Judge as wellas the Division Bench of the High Court have materially erred in quashingand setting aside the entire acquisition proceedings on the ground thatthere was no delegation of power by the State Government with regardto Section 5-A of the Act, 1894 to the Collector.

EIt is further submitted that even the learned Single Judge specificallyobserved and held that except for technical irregularity, the award cannotbe declared invalid.

3.6 As regards the quashing and setting aside Scheme No. 97 onthe ground that IDA failed to take substantial steps to implement theFscheme within three years from the date of publication as per section 54of the Adhiniyam, it is submitted that section 54 of the Adhiniyam providesthat “if the Town and Country Development Authority fails to commenceimplementation of the Town Development Scheme within a period ofthree years from the date of notification of the final scheme under sectionG50, it shall, on the expiration of the said period of three years, lapse.”

3.7 It is submitted that in the present case the substantial stepswere taken within three years. That before the expiration of three yearswhen the negotiations failed, the State Government immediately issuedthe notification under Section 4 of the Act, 1894.

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3.8 It is next submitted that in the present case declaration ofintention to prepare a town development scheme under section 50(1)was issued on 13.03.1981; publication of the said declaration under Section50(2) was carried out on 10.07.1981; final development scheme waspublished in the Official Gazette under section 50(7) of the Adhiniyamon 08.06.1984; the State Government was requested to acquire the landon 4.06.1987, i.e., within three years of the final publication. It is submittedthat substantial steps taken within these three years are as under:

3.9 It is submitted that in view of the timeline set out above, thelearned Single Judge has completely erred in declaring the scheme ashaving lapsed on the ground of non-implementation of the scheme undersection 54 of the Adhiniyam. It is submitted that the words “commenceimplementation” occurring in Section 54 do not mean completion ofimplementation of the scheme. It is submitted that the only reasonableinterpretation of Section 54 would be that some steps should be taken bythe Authority for implementation of the scheme and must have an intentionto implement the scheme.

In support of his above submission, reliance is placed on thedecision of the Madhya Pradesh High Court in the case of Sanjay GandhiGrih Nirman Sahakari Sanstha Maryadit v. State of M.P. & Others,reported in AIR 1991 MP 72. It is submitted that a special leave petition A

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Aagainst the said decision has been dismissed by this Court. It is submittedthat in the aforesaid decision, it was held as under:

“S. 54 does not appear to apply when substantial steps have beentaken within three years to implement the scheme. The Court hadalso taken into consideration S. 56, 57 and 58 of the AdhiniyamBand has taken a view that the words ‘fails to implement’ wouldmeans failure to take any substantial steps for the implementationof the scheme and if no such step is taken within three years thescheme will lapse…”

It is submitted that therefore the learned Single Judge as well asCDivision Bench of the High Court have materially erred in declaring thescheme as having lapsed on the ground of non-implementation of thescheme under Section 54 of the Adhiniyam.

3.10 Without prejudice to the above, it is further submitted thatSection 54 of the Adhiniyam is clear in its terms that in case theDDevelopment Authority failed to commence implementation of the scheme(which means taking substantial steps) within the period of three yearsfrom the date of notification, the scheme shall lapse but the acquisitionshall not. It is averred that once the land is acquired, it vests in theGovernment and once it is vested in the Government, it cannot betransferred back and it becomes the property of the Government.

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3.11. As regards the finding recorded by the learned Single Judgeon hostile discrimination and quashing and setting aside the entireacquisition proceedings on the ground that a huge and big chunk of land,out of the total land, has been released and therefore to continue withthe acquisition with respect to rest of the land is discriminatory and violativeFof Article 14 of the Constitution of India, it is submitted that the learnedSingle Judge as well as the Division Bench have not properly appreciatedthe grounds on which the lands were released. That the learned SingleJudge as well as the Division Bench have materially erred in not properlyappreciating the fact that the release of the land would depend on theGrequirement. It is submitted that it is settled law that where the land isacquired for establishing a residential, commercial, or industrial area andthe application for release of the land reveals that the land has beenused for the same purpose, the Government may release the land, if itsexistence does not by any means hinder development as per thenotification for acquisition. Reliance is placed on the decisions of thisH

Court in the cases of Rajasthan State Industrial Development andInvestment Corporation v. Subhash Sindhi Cooperative HousingSociety, Jaipur, (2013) 5 SCC 427; Union of India v. Bal Ram Singh,1992 Supp (2) SCC 136; Sube Singh v. State of Haryana, (2001) 7SCC 545; Jagdish Chand v. State of Haryana, (2005) 10 SCC 162;and Dharam Pal v. State of Haryana, (2009) 2 SCC 397.

3.12 It is next contended that in the present case, the lands wereacquired for residential, park and industrial purposes. That hence therelease of land has not prejudiced or affected the integrity of the scheme.That the end result of the release of some land was that the total area ofthe scheme has become lesser to that extent but the integrity of thescheme remains the same.

3.13 It is submitted that as such in the present case the IDA fileda clarification giving reasons regarding land released out of Scheme No.97. That however the learned Single Judge failed to appreciate thosereasons.

3.14 It is further submitted that the following were the reasons torelease some of the land proposed to be acquired:

a. 111.156 hectors of land were released in favour of HousingCooperative Societies - As stated above that this release has noimpact on the implementation of the scheme because the objectof the said housing societies and of the scheme was the same. Itmay further be pointed out that the Authority/ State Govt. hadreleased the land only of those societies who had either developedor started development of colony or had acquired the title to theland or had obtained exemption u/s 20 of the Urban Land (Ceiling& Regulation) Act, 1976 before publication of final scheme u/s 50(7) of the Adhiniyam. It may be submitted that the Respondentshave not fulfill any of these conditions, therefore, it cannot be saidthat they are similarly situated with the other Housing Societies.

In case of R-1/ Burhani Nagar Society, admittedly theexemption u/s 20 of the Urban Land Ceiling Act was granted tothe Burhani Nagar on 30.09.1988 i.e., much after the finaldeclaration of the scheme u/s 50 (7) of the Adhiniyam and alsoafter the publication of notification u/s 4 of the Act. It is alsopertinent to mention that the said Burhani Nagar Society had A

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Apurchased the land by a registered sale deed on 03.10.1988 i.e.,after publication of notification u/s 4 of the Act.

b. 104.524 hectors of land released from the scheme – As statedabove, the land use of the said land was either agricultural orregional park.

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c. Release of land having area 46.116 hectors - Aforesaid landwas released by the Land Acquisition Officer while consideringthe objections u/s 5-A of the Act because of certain reasons likeexisting houses, religious places, different land use etc., 3.15 It is further submitted by Shri Balbir Singh, learned ASG thatCin the present case some of the lands have been acquired and in factused for the park.

3.16 Making above submissions, it is prayed that the present appealsbe allowed and the impugned common judgment and order passed bythe Division Bench dismissing the writ appeals and the common judgmentDand order passed by the learned Single Judge, quashing and setting asidethe entire acquisition proceedings under the Land Acquisition Act aswell as quashing and setting aside Scheme No. 97 under section 54 ofthe Adhiniyam, be quashed and set aside. It is submitted that if theimpugned judgment and order passed by the High Court is not interferedEwith, the same shall affect the development of the area under the scheme,which may be against public interest.

4. All these appeals are vehemently opposed by Shri BasavaPrabhu S. Patil, Shri Subash Samvatsar, Shri N.K. Mody, learned SeniorAdvocates, Shri Puneet Jain and Shri Mayank Kshirsagar, learned counselFappearing on behalf of the respective original writ petitioners.

4.1 Shri Punit Jain, learned counsel appearing on behalf of therespective contesting respondents in Civil Appeal No.5099/2022 @ SLPNo. 34880/2014, Civil Appeal No. 5101/2022 @ SLP No. 34907/2014,Civil Appeal No. 5103/2022 @ SLP No. 34879/2014 and Civil AppealNo. 5077/2022 @ SLP 34855/2014 has vehemently submitted that in theGfacts and circumstances of the case neither the learned Single Judgenor the Division Bench of the High Court has committed any error inquashing and setting aside the scheme(s) and acquisition proceedingswith respect to the lands in question.

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4.2 It is submitted by Shri Punit Jain, learned counsel appearingon behalf of the original writ petitioners that the learned Single Judge aswell as the Division Bench of the High Court has struck down the schemeas well as the acquisition, inter alia, on the following grounds: -

(i) That the scheme has lapsed in view of section 54 of theM.P. Nagar Tatha Gram Nivesh Adhiniyam.

(ii) That a substantial portion of the lands forming part of thetwo schemes 97(2) and 97(4) had been released andcontinuing the scheme thereafter and acquiring the landsof the other landowners (i.e., the respondents herein) is anact of hostile discrimination being in violation of Article 14.

(iii) That there was no delegation of the power of the StateGovernment under section 5A to the Commissioner andhence, the decision for acquisition of land under section 5Ais not by a proper authority. Therefore, the acquisition isvitiated.

4.3 It is contended that in the present case the date of publicationof final scheme under section 50(7) is 08.06.1984. No steps were takenby the IDA to implement the scheme for approximately three years,except engaging in so called negotiations with the original land ownersto acquire the land by mutual consent. The notification under Section 4of the Land Acquisition Act (LA Act) was issued on 24.07.1987 and thedeclaration under Section 6 of the LA Act was made on 03.10.1988. It issubmitted that the award came to be declared under Section 11 of theLA Act on 06.03.1991. That therefore, when the final scheme No. 97was published on 08.06.1984, the IDA was expected to “implement” thescheme within the period of three years from the said date.

4.4 It is further contended that the word “implement” appearingin section 54 of the Adhiniyam must be understood narrowly and musttherefore, mean full and complete implementation. It is submitted that inany case, the word “implement” ought to be understood to mean“substantial implementation.”

4.5 It is submitted that in the present case, the learned SingleJudge did not accept the narrow view and proceeded to test the actionsof the IDA on the “substantial implementation” principle. It is submittedthat the High Court has found that sending a request for acquisition of A

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Aland, four days before the deadline did not satisfy the “substantialimplementation” test.

4.6 It is next submitted that the word “implement” appearing inSection 54 ought to be interpreted purposively looking at the purpose ofthe said section along with the other provisions of the Adhiniyam.

B4.7 It is further contended with regard to Section 54 on non-implementation of the scheme as under: - (a) That Section 54 must be understood as the time-cap for therestriction provided in section 53. It is submitted that, section 53places a restriction on land owners whose lands have been notifiedCto be part of a Town Development scheme to carry outdevelopment of this land. That such restriction cannot be for anunlimited duration and hence section 54 gives the maximum periodof three years up to which such restrictions can continue.

(b) While the restrictions under section 53 are in place, substantialDsteps are required to be taken for “acquisition” of land either byagreement or under the Land Acquisition Act, 1894.

(c) The manner of acquisition has been provided under Section56 of the Act and Rule 19 of the then existing M.P. Nagar TathaGram Nivesh Niyam, 1975, prescribes the steps to be taken in theEprocess of acquisition. Section 56 provides two modes ofacquisition: -

(i) Proceed to acquire by agreement, and

(ii) On failure to acquire by agreement, proceed to acquire underthe Land Acquisition Act.

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Rule 19 of the 1975 Rules, read with section 56, provide as under:- “19. Acquisition of land - (1) For the purpose of land acquisitionunder section 56 of the Act, the land shall be in the Town andCountry Development Authority subject to the following termsand conditions namely:- G

(i) Within three years from the date of publication ofthe Town Development Scheme under Section 50,the town and country development authority shallproceed to acquire the land required for theimplementation of the scheme.

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(ii) Where such acquisition is by agreement, the landshall vest in the Town and Country DevelopmentAuthority on terms and conditions arrived at throughsuch agreement.

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(iii) On failure of agreement the Town and CountryDevelopment Authority shall request the stateBgovernment to acquire such land under the provisionsof the Land Acquisition Act, 1894 (1 of 1894) onpayment of compensation awarded under that Act.

(iv) Declaration shall be published under section 6 of theLand Acquisition Act, 1894 (1 of 1894)

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(v) After such declaration the collector shall proceed totake order for the acquisition of the land under thesaid Act, and the provisions of the Act shall apply sofar as may be, apply to the acquisition of the saidland with the modification that the market value ofthe said land shall be the determining factor.”

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Rule19(1)(i) contains a general statement enabling the authorityto “proceed to acquire” the land required for implementation of thescheme. This, can be done in two ways - (1) acquisition by agreementunder 19(1)(ii), and on failure to acquire by agreement, (2) by compulsoryacquisition the steps necessary for which are provided under 19(1)(iii)(iv)and (v). Thus, for compulsory acquisition there should be :- E

(1) A request by the Town and Country Development Authorityfor compulsory acquisition, F

(2) A declaration under section 6 of the Land Acquisition Act, and

(3) A request by the Collector to the appropriate government foran order for acquisition of land under section 7 of the LandAcquisition Act, 1894.

4.7 It is submitted that thus, while the restrictions under section53 are in place, the Authority is expected to “implement” the scheme.During the period, the authority must act in a manner and reach thestage where the position becomes “irreversible” or substantiallyirreversible” so far as the land owner is concerned, i.e., G

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A(i)The land of the land owner is either “acquired” byagreement, in which case he would get the agreedcompensation for his land; or

(ii) Substantial steps are taken for compulsory acquisition ofthe land under the Land Acquisition Act, 1894 such that theBposition reaches the stage of the order under section 7 ofthe said Act; or

(iii) Passing of an award under section 11 or takeover ofpossession under section 16 resulting in complete vesting ishowever not the requirement of “implementation” for theCpurposes of section 54 read in conjunction with section 56read and rule 19.

4.8 It is further submitted that as per Section 55, the land for atown development scheme would be land needed for public purposeunder the Land Acquisition Act. That once a declaration under section 6Dis issued under section 6(3) of the LA Act, the declaration becomesconclusive evidence that the land is needed for public purpose. It issubmitted that the statutory fiction under section 55 also continues for aperiod of three years, for, if the scheme lapsed under section 54, thestatutory fiction under section 55 also comes to an end. That therefore,before the period lapses, a declaration under section 6(3) takes over andEnecessity of a statutory fiction under section 55 thereafter is no longernecessary.

4.9 It is averred that in a case where a notification under section4 is issued after expiry of 3 years from the date of final scheme undersection 50(7), the statutory fiction under section 55 would come to anFend and acquisition for a lapsed scheme would not be for a public purpose.It is submitted that acquisition of land for a “public purpose” is a sine-qua-non, absent which no acquisition would be valid.

4.10 It is next submitted that taking steps for acquisition byagreement cannot be said to amount to “taking steps” to implement theGscheme within a period of three years. That as rightly observed by thelearned Single Judge, even assuming that IDA was making efforts toacquire the lands through private negotiations with the land owners, thiseffort of the IDA would not create any bar against getting the schemeimplemented under the Adhiniyam. That as rightly observed by thelearned Single Judge, both the steps could have been taken by the IDAH

simultaneously. Therefore, the learned Single Judge as well as the DivisionBench of the High Court have rightly held that the scheme in questionhad lapsed in view of Section 54 of the Adhiniyam as the scheme wasnot implemented within a period of three years.

4.11 As regards the competence of the Collector to act as“appropriate government” for the purposes of section 5A and 6 of theLA Act, 1894, it is submitted that in the present case after the issuanceof the notification under section 4, objections under section 5A wereinvited which were collated by the Deputy Collector and Land AcquisitionOfficer who filed his report before the Collector. The collector proceededto decide the objections under section 5A of the Act. That thereafter, thecollector proceeded to issue a declaration under section 6 of the Act. Itis submitted that in the present case, the Hon’ble Minister did not delegatehis powers under section 5A of the Land Acquisition Act, 1894 to theCollector, who was empowered to act under sections 4, 5, 6 and 17 ofthe Act.

4.12 It is contended that the power to take a decision under section5A is the power of the “appropriate government”, which in view ofsection 3(ee) would mean the State Government in the facts of the presentcase. That in the present case, the powers of the “appropriategovernment” under section 5A have not been delegated to any authorityby the order dated 22.03.1985.

4.13 It is next submitted that powers under section 6 have to beexercised “under the signature of a Secretary to such government or ofsome officer duly authorized to certify its orders”. That the said powershave been conferred by the Government order dated 22.03.1985 uponthe “Divisional Commissioner.” The declarations under section 6 havebeen issued by and under the signatures of the Collector as DeputySecretary. Therefore, the High Court is fully justified in its conclusionthat the Collector, who had exercised powers of the State Governmentunder section 5A, did not have the said powers.

4.14 It is further submitted that even otherwise, as rightly observedand held by the High Court, there was a hostile discrimination on thepart of the State Government and the IDA. That in the present case, outof 531.428 hectares of land identified and included for schemes at thetime of final notification of the scheme under section 50(7), 261.796hectares of land has already been released by the IDA/State of Madhya A

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APradesh. That once the large portions of the land have been released,the schemes as originally envisaged cannot be implemented. Since thescheme and the acquisition notification have been quashed, therespondents did not avail of the remedy of increase in compensation byfiling a reference under section 18 of the Act. That in case, this Courtupholds the scheme and the acquisition, the respondents may be givenBliberty to file reference, if so advised, for increase in compensationdetermined by the LAO.

4.15 It is further submitted that even otherwise the appeals filedby the IDA have since been rendered in fructuous in view of theamendment in Section 50 of the Adhiniyam by 2019 Amendment Act.CThat as per amended section 50(1)(b) of the Act, where a towndevelopment scheme has been notified under the repealed provisions ofthe Act, but development has either not started or not been taken up forany reason, the same shall lapse. It is submitted that in the present case,insofar as others schemes are concerned, the same have been declaredDto have lapsed in view of amended section 50(i)(b). It is submitted thatsince the scheme in question was quashed by the High Court in year1988 which order was confirmed by the Division Bench in the year2014, the scheme could not be acted upon. That in the present case,neither the possession of the lands has been taken by the authority (asthere was stay orders by the High Court) nor compensation for theEschemes has been deposited. It is submitted that admittedly out of 531.428hectares, 261.796 hectares of land out of approved scheme layout hasbeen released and no land has been acquired through mutual negotiationswith the land owners. Therefore, in the facts and circumstances of thecase, learned Single Judge as well as the Division Bench of the HighFCourt have rightly quashed the scheme, treated it as having been lapsedunder Section 54 of the Adhiniyam and have rightly quashed the acquisitionproceedings under the LA Act.

4.16 Other learned senior counsel/counsel appearing on behalf ofthe original writ petitioners have virtually made the same submissions asGmade by Shri Punit Jain and therefore, the same are not repeated. Allthe learned counsel appearing for the original writ petitioners havesupported the impugned judgment and order passed by the High Courton the lapse of the scheme as well as quashing and setting aside theacquisition proceedings.

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5. We have heard learned counsel for the respective parties atlength.

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By the impugned common judgment and order, the High Courthas quashed Scheme No. 97 framed by the appellant – IndoreDevelopment Authority framed in exercise of the powers conferred underSection 50 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam,1973, as well as the entire acquisition proceedings under the LandAcquisition Act, 1894 with respect to the lands covered under SchemeNo. 97. From the judgment and order passed by the learned Single Judge,confirmed by the Division Bench, it appears that the High Court has setaside the scheme as well as the acquisition proceedings, inter alia, onthe following grounds:

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(i) That the scheme has lapsed in view of section 54 of theM.P. Nagar Tatha Gram Nivesh Adhiniyam;

(ii) That a substantial portion of the lands forming part of thetwo schemes 97(2) and 97(4) had been released andDcontinuing the scheme thereafter and selectively acquiringthe lands of the other landonwers (i.e., the respondentsherein) is an act of hostile discrimination being in violationof Article 14; and

(iii) There was no delegation of the power of the StateGovernment under Section 5-A to the Commissioner andhence, the decision for acquisition of the land under Section5A is not by a proper authority. Acquisition is thus vitiated.

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6. As regards the finding recorded by the High Court that SchemeNo. 97 has lapsed in view of section 54 of the Adhiniyam and in order toconsider whether the High Court is justified in quashing the entire schemeon the ground that the same has lapsed under section 54 of the Adhiniyam,the relevant provisions of the Adhiniyam are required to be referred to,which are as under:

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“50. Preparation of Town Development Schemes. - (1) The Townand Country Development Authority may, at any time, declare itsintention to prepare a town development scheme.

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(2) Not later than thirty days from the date of such declaration ofintention to make a scheme, the Town and Country Development H

Authority shall publish the declaration in the Gazette and in suchother manner as may be prescribed.

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(3) Not later than two years from the date of publication of thedeclaration under sub-section (2) the Town and CountryDevelopment Authority shall prepare a town development schemein draft form and publish it in such form and manner as may beprescribed together with a notice inviting objections and suggestionsfrom any person with respect to the said draft development schemebefore such date as may be specified therein, such date being notearlier than thirty days from the date of publication of such notice.

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(4) The Town and Country Development Authority shall considerall the objections and suggestions as may be received within theperiod specified in the notice under sub-section (3) and shall, aftergiving a reasonable opportunity to such persons affected therebyas are desirous of being heard, or after considering the report ofthe committee constituted under sub-section (5) approve the draftscheme as published or make such modifications therein as it maydeed fit.

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(5) Where the town development scheme relates to reconstitutionof plots, the Town and Country Development Authority shall,notwithstanding anything contained in sub-section (4), constituteEa committee consisting of the Chief Executive Officer of the saidauthority and two other members of whom one shall berepresentative of the Madhya Pradesh Housing Board and theother shall be an officer of the Public Works Department notbelow the rank of an Executive Engineer nominated by the ChiefEngineer, Public Works Department for the purpose of hearingFobjections and suggestions received under sub-section (3).

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(6) The committee constituted under sub-section (5) shall considerthe objections and suggestions and give hearing to such personsas are desirous of being heard and shall submit its report to theTown and Country Development Authority within such time as itmay fix along with proposals to,- G

(i) define and demarcate the areas allotted to or reserved forpublic purpose;

(ii) demarcate the reconstituted plots;

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(iii) evaluate the value of the original and the reconstitutedplots;

(iv) determine whether the areas reserved for public purposeare wholly or partially beneficial to the residents within thearea of the scheme;

(v) estimate and apportion the compensation to or contributionfrom the beneficiaries of the scheme on account of thereconstitution of the plot and reservation of portions for publicpurpose;

(vi) evaluate the increment in value of each reconstituted plotand assess the development contribution leviable on the plotholder :

Provided that the contribution shall not exceed half the accruedincrement in value;

(vii) evaluate the reduction in value of any reconstituted plotand assess the compensation payable therefor.

(7) Immediately after the town development scheme is approvedunder sub-section (4) with or without modifications the Town andCountry Development Authority shall publish in the Gazette andin such other manner as may be prescribed a final towndevelopment scheme and specify the date on which it shall comeinto operation.

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54. Lapse of scheme - If the Town and Country DevelopmentAuthority fails to commence implementation of the towndevelopment scheme within a period of two years or complete itsimplementation within a period of five years from the date ofnotification of the final scheme under Section 50, it shall, onexpiration of the said period of two years or five years, as thecase may be, lapse :

Provided that, if a dispute between the authority and parties, ifany, aggrieved by such scheme, is brought before a Court orTribunal of competent jurisdiction, for consideration, the periodfor which such dispute pending before such Court or Tribunalshall not be reckoned for determination of the lapse of the scheme.]

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A56. Acquisition of land for Town and Country DevelopmentAuthority. - The Town and Country Development Authority mayat any time after the date of publication of the final towndevelopment scheme under Section 50 but not later than threeyears therefrom, proceed to acquire by agreement the landrequired for the implementation of the scheme and, on its failureBso to acquire, the State Government may, at the request of theTown and Country Development Authority, proceed to acquiresuch land under the provisions of the Land Acquisition Act, 1894(No. 1 of 1894) and on the payment of compensation awardedunder that Act and any other charges incurred by the StateCGovernment in connection with the acquisition, the land shall vestin the Town and Country Development Authority subject to suchterms and conditions as may be prescribed.”

Thus, as per Section 54 of the Adhiniyam, if the Town and CountryDevelopment Authority fails to commence implementation of the Town DDevelopment Scheme within the period stipulated in section 54 of theAdhiniyam, the Scheme shall lapse. Therefore, the words “commenceimplementation” are vital and important words which are required to beconsidered and interpreted.

7. It is the case on behalf of the Development Authority that theEfollowing steps were taken for implementation of Scheme No. 97 withinthree years, i.e., 8.6.1984, which are as under:

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At this stage, it is required to be noted that as per section 56 of theAdhiniyam, the Development Authority may at any time after the dateof publication of the final town development scheme under section 50,but not later than three years therefrom, proceed to acquire by agreementthe land required for the implementation of the scheme and, on its failureso to acquire, the State Government may, at the request of theDevelopment Authority, proceed to acquire such land under the provisionsof the Act, 1894. Thus, under section 56 of the Adhiniyam, within threeyears the Development Authority was required to proceed to acquire byagreement the land required for the implementation of the scheme andonly thereafter and on its failure so to acquire, the State Governmentmay, at the request of the Development Authority, proceed to acquiresuch land.

8. It is the case on behalf of the Development Authority that inthe present case since negotiations failed and the Development Authorityfailed to acquire the land by agreement, the Development Authorityrequested the State Government on 4.06.1987 to acquire the land, whichrequest was made within a period of three years from the date offinalization of the scheme. Therefore, it is the case on behalf of theDevelopment Authority that the scheme shall not have lapsed undersection 54 of the Adhiniyam. It is the case on behalf of the DevelopmentAuthority that taking various steps between 8.06.1984 and 4.06.1987can be said to be in furtherance of, or commencing implementation ofthe scheme.

However, on the other hand and as per the High Court, actualimplementation of the scheme is a must and that there were no substantialsteps to implement the scheme within three years. That to make therequest four days before the completion of three years would not besufficient and therefore the scheme has lapsed under section 54 of theAdhiniyam. As observed hereinabove, the words used in Section 54 ofthe Adhiniyam are “fails to commence implementation”. That does notmean that there must be implementation of the scheme within the timestipulated under section 54 of the Adhiniyam. There is a clear distinctionbetween the words “implementation” of the scheme and “to commenceimplementation”.

9. An identical question came to be considered by the MadhyaPradesh High Court in the case of Sanjai Gandhi Grah Nirman SahkariSanstha Maryadit v. State of M.P. and others, reported in 1990 SCC

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AOnLine MP 115 : AIR 1991 MP 72. While interpreting the words“implementation of the scheme” and the word “implementation” occurringin section 54 of the Adhiniyam, it was observed and held that the word“implementation” occurring in section 54 of the Adhiniyam cannot beconstrued to mean that even after substantial steps have been taken bythe authority towards the implementation of the scheme, the schemeBshall lapse after the expiry of three years because of its non-completionwithin that period. While observing and holding so, in paragraphs 16 to20, it was observed as under:

“16. It has next been contended by learned counsel for thepetitioners that in accordance with the provisions contained in S.C54 of the Adhiniyam the scheme has lapsed because the IndoreDevelopment Authority has failed to implement the scheme withina period of three years from the date of the publication of thescheme under S. 50 of the Adhiniyam. The learned counsel for allthe petitioners have laid much emphasis on the fact that the wordD‘implementation’ would clearly mean fulfilment, performance,accomplish, complete, carry out and as such from the dictionarymeanings in the Webster Dictionary, Chambers Dictionary, OxfordDictionary or any other dictionary, there can only be one meaningto the word ‘implementation’ that the scheme has to be completedor carried out in all respects within the prescribed period of threeEyears and if the Indore Development Authority fails to implementthe scheme within that period the scheme shall lapse in view ofthe statutory provision of S. 54.

17. On the other hand it has been argued that the word‘implementation’ has to be construed in the context of theFAdhiniyam itself. The whole scheme of the Adhiniyam in respectof formulation of the scheme and the implementation of the schemehas to be taken into consideration before holding that theimplementation would only mean the completion.

18. For properly appreciating the respective arguments of theGparties let us read the different provisions contained in theAdhiniyam in respect of the preparation and implementation ofthe scheme. Section 50 provides for the preparation, of a towndevelopment scheme and different stages have been provided forthe preparation of the scheme and sub-section (7) of S. 50 of theHAdhiniyam provides that as soon as the town development scheme is approved under sub-section (4) with or without modificationsthe Town and Country Development Authority shall publish in thegazette and in such other manner as may be prescribed a finaltown development scheme and specify the date on which it shallcome into operation. After the final publication of the scheme apower of revision has been provided in S. 51, wherein the Directorof Town and Country Planning has been given a power, on anapplication filed by any of the aggrieved person or suo motu, toexamine the record of the scheme and pass any such ordermodifying the scheme as he may deem fit after perusing the recordand during that time he may suspend the execution of the scheme.This power of the Director can be exercised by him within twoyears from the date of the publication of the final, scheme. Thenagain under S. 52 of the Adhiniyam the State Government has apower to give directions in respect of modification of a scheme,revoking the scheme or for framing a fresh scheme. Then S. 54of the Adhiniyam provides for the lapse of a scheme if it is notimplemented within a period of three years.

Section 56 of the Adhiniyam provides that after the date ofpublication of the final scheme under S. 50 the Authority mayproceed to acquire the land required for the implementation of thescheme within a period of three years by agreement and if thereis a failure in acquiring the land by agreement then request for theacquisition of the land may be made to the authority. Then S. 57provides for the development which clearly says that when theland has vested in the Authority under S. 56 of the Act inaccordance with the provisions of the Town Development Scheme,the authority shall take necessary steps to develop the land.Thereafter also the State Government or the Director has asupervisory power to ensure that the development is in accordancewith the scheme and may also issue directions to the authoritywhich are binding on the authority. As such the aforesaid provisionsmade in the Adhiniyam have to be taken into consideration beforeinterpreting the word ‘implementation.’

After a scheme is published under S. 50(7) of the Adhiniyam, theDirector has an authority to revise the final scheme within a periodof two years and then under S. 56 of the Adhiniyam the Authorityhas been given power to initiate negotiations for acquisition a within ABC

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a period of 3 years, failing which the land acquisition proceedingsmay be initiated and S. 57 postulates the commencement of thedevelopment work after the land is acquired and is vested in theauthority. As such the word ‘implementation’ can never beconstrued to mean that the scheme should be fulfilled or carriedout within a period of three years. Reading S. 54 of the Adhiniyamalong with Ss. 56 and 57 of the Adhiniyam the irresistableconclusion is that the intention of the legislature was that if ascheme is lying idle after its final publication for a period of 3years, then it will lapse. But if steps have been taken by theauthorities towards the implementation of the scheme then, theword ‘implementation’ shall not be construed to mean that theperiod of three years is the period prescribed for the completionof the scheme.

19. In the instant case the scheme is for the preparation of a ringroad and developing different facilities and civic conveniencesaround the ring road. A scheme for a much larger constructionand development may be prepared which may even take ten yearsto complete. If we interpret the word ‘implementation’ in its narrowsense, a big scheme can never be taken in hand by any developmentauthority because it may not be possible to complete that schemewithin 3 years. Therefore, that only reasonable interpretation in view of the different provisions of the Adhiniyam, can be that ifthe development authority takes steps towards the implementationof the scheme and does not sit just idle for a period of three years,then the scheme shall not lapse, but if after the publication of thescheme nothing is done on the part of the authority, towards theimplementation of the scheme then that scheme shall lapse.

20. A Division Bench of this Court in the caseof Laxmichand v. The Indore Development Authority,Indore (M.P. No. 390 of 1980 decided on 14-12-81) in which asimilar argument was advanced that after the expiry of three yearsif the scheme is not implemented it lapsed, has held that S. 54does not appear to apply when substanital steps have been takenwithin three years to implement the scheme. The Court had alsotaken into consideration Ss. 56, 57 and 58 of the Adhiniyam andhas taken a view that the words ‘fails to implement’ would meanfailure to take any substantial steps for the implementation of the

scheme and if no such step is taken within three years the schemewill lapse. If substantial steps have been taken within three yearsthough the scheme is not fully implemented within that period thescheme would not lapse and proceedings for acquisition of landunder the scheme is a substantial step towards its implementation.We are in respectful agreement with the aforesaid view taken bya Division Bench of this Court and hold that the word ‘implement’occurring in S. 54 of the Adhiniyam cannot be construed to meanthat even if a substantial step has been taken by the authoritytowards the implementation of the scheme then also the schemeshall lapse after the expiry of three years because of its non-completion within that period.”

We are in complete agreement with the view taken by the MadhyaPradesh in the aforesaid case.

10. At this stage, Rule 19 of the M.P. Nagar Tatha Gran NiveshNiyam, 1975 r/w Section 56 of the Adhiniyam are required to be referredto. As per section 56 of the Adhiniyam r/w Rule 19 and for the purposesof land acquisition under section 56 of the Adhiniyam, within three yearsfrom the date of publication of the final town development scheme undersection 50, the Town and Country Development Authority shall proceedto acquire the land required for the implementation of the scheme. Thewords used are “ proceed to acquire” and not “actual acquisition”. Theintention of the legislature thus seems to be very clear and unambiguous.Therefore, when the Statute provides certain things to be done withinthe stipulated time mentioned in the Act, the Authority is to be givensuch time, more particularly while dealing with the scheme which hasbeen framed for the entire area and for the public purpose. In the presentcase, Scheme No. 97 has been framed and the lands have been acquiredfor residential, park and industrial purposes. Any other meaning mayfrustrate the purpose of framing of the scheme for residential, part andindustrial purposes.

11. In view of the above and when within three years varioussteps were taken for implementation of the scheme including the stepsto acquire the land by negotiations and even thereafter on failure toacquire the land by negotiations approaching the State Government toacquire the land under the Land Acquisition Act, the High Court haserred in declaring that the scheme has lapsed under section 54 of the AB

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AAdhiniyam. The High Court has adopted too narrow a meaning whileinterpreting and/or considering section 54 of the Adhiniyam.

12. So far as quashing and setting aside the entire acquisitionproceedings including sections 4 & 6 notifications issued under theprovisions of the Land Acquisition Act with respect to the lands in questionBon the ground that there was no proper delegation of power to the Collectorwith regard to Section 5A of the Act, is concerned, it is required to benoted that in the present case, the State Government vide its letter dated22.3.1985 delegated its power to the District Collector as DeputySecretary of the Revenue Department and to the Commissioner of thedivision to act as Secretary of the Revenue Department and to adjudicateCmatters related to land acquisition by exercising powers given underSections 4, 5, 6 and 17 of the Act, 1894. Merely because Section 5A hasnot been mentioned in the said order, the entire acquisition proceedingsincluding notifications under Sections 4 & 6 of the Act, 1894 and moreparticularly the declaration which was issued after considering the report/Dobjections under section 5A cannot be declared illegal.

12.1 Further, a declaration under Section 6 of the Act, 1894 couldbe issued only after the report submitted under Section 5A has beenconsidered by the appropriate government. Under Section 5A of theAct, the objections are required to be considered by the Collector, i.e.,Ethe Collector of a District including a Deputy Commissioner and anyother officer especially appointed by the appropriate government toperform the functions of a Collector under the Land Acquisition Act. Inthe present case, apart from being specially appointed by the appropriategovernment to perform the functions of a Collector, the authority whohas considered the objections under Section 5A is the Collector of aFDistrict. Even the State Government vide its circular dated 6.03.1987conferred power on the Deputy Collectors for exercising the functionsof the Collector for acquisition of the land in their respective areas.

12.2 An identical question came to be considered by the MadhyaPradesh High Court in the case of Adarsh Nagar Grih Nirman SahkariGSansthan Maryadit, Bhopal v. State of M.P. and Others, reported in2004 (1) M.P.L.J. 539 : 2003 SCC OnLine MP 329, in paragraphs 24to 26, it was observed and held as under:

“24. The submission raised by the learned counsel that thisnotification (R-6) is bad in law and based on the provisions of H

sections 4, 5-A and 6 of the Act cannot be accepted. DivisionBench of this Court in case of Gajancm v. State of M.P., AIR2000 MP 2, repelled similar submission that such satisfaction wasarrived at by Collector/Commissioner, not by State Governmentthe acquisition cannot be challenged on the ground of satisfactionwas not arrived at by ‘appropriate government’. The business ofthe Government is required to be transacted in the name ofGovernor, it is not possible or practicable that all such businesswas dealt with by him or by Council of Ministers.In Gajanan (supra), it has been held:—

“33. In State of M.P., Governor had made Rules of Businessand Rules of allocation of Business and had also issuedinstructions thereunder. Under Rule 4 of BAR he had putRevenue Department under the charge of a Minister. He hadfurther allotted business of land acquisition to the RevenueDepartment. The Revenue Minister was authorised to delegatethe power for disposal of any item of business to the Secretaryof the Department under Rule 2-A of the SupplementaryInstructions issued Rule 13 of Business Rules. Similarly, thegovernment had declared in terms of Entry 49 of BusinessAllocation Rules that General Administrative Department wouldbe entitled to designate ex-officio of ficers and in exercisewhereof it had notified the Revenue Commissioners andCollectors as ex-officio Secretaries/Deputy Secretaries to takedecisions in land acquisition matters on behalf of theGovernment. All this showed that power to deal with landacquisition subject flowed down to Secretary/Deputy Secretaryof the Revenue Department or any other of ficial who wasdeclared/appointed/designated so ex-officio for the purpose andonce such appointed ex-officio Secretary (RevenueCommissioner) was asked to dispose of land acquisition mattersby the Minister-in-charge under Rule 2-A of supplementaryinstructions, he assumed the jurisdiction to deal with suchmatters and all his actions and decisions become that of theGovernment.”

25. The question of delegation of such power has been answeredin Gajanan (supra) as under:

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116SUPREME COURT REPORTS

A“33A. Mr. Asudani’s reliance on AIR 1957 Mad 48 to suggestthat Minister’s order to empower ex-officio Secretary (RevenueCommissioner) was invalid as it was not a Government orderand that such power could not be delegated by him is whollymisconceived. It is true that a Minister’s instruction or directiondoes not partake the character of a Government order unlessBformalised in conformity with the Rules of Business but in thepresent case no such Government order was required to bepassed to vest the requisite power in the RevenueCommissioner. It is also fallacious to contend that the Ministercould not delegate such power because Governor alone couldCdo that. Once Governor himself had empowered the Ministerto ask the Secretary to deal with and dispose of any item ofbusiness under the rules, it tantamounted to delegation of powerby the Governor himself. We are also not impressed by thesubmission that such power could be delegated only to “aSecretary” perhaps implying Secretary of the Department. ThisDoverlooks a situation where a department may have more thanone Secretary and the Minister could delegate the power toany of them.”

26. In the instant case Collector has exercised the power ofappropriate Government and Deputy Collector has forwarded theEobjections and submitted the report to the Collector and Collectorhas exercised the power under section 6, I find no impropriety inthe same.”

12.3 In the instant case also, when the Collector has exercisedthe power of the appropriate government and a declaration under sectionF6 of the Act has been issued after considering the report on the objectionsunder Section 5A of the Act, the High Court has seriously erred in quashingand setting aside the entire acquisition proceedings on the aforesaidground.

13. So far as the third ground on which the scheme and the entireGacquisition proceedings have been set aside, namely, the huge and bigchunk of land out of the total land sought to be acquired by theDevelopment Authority which has been released, is concerned, it isrequired to be noted that out of the total land acquired, 68.11% of theland has been developed and 31.89% has not been developed due toHinterim orders passed by the Courts. Even otherwise, it is required to be noted that out of the total land covered under the scheme, i.e., 332.616hectares (277.853 hectares of land acquired through award plus 44.763hectares of the land owned by the Authority), land has been released forvarious purposes to the extent of 54.660 hectares and still the remainingland would be to the extent of 267.956 hectares out of which the landinvolved in the present appeals would be to the extent of 85.430 hectares.According to the Development Authority, 111.156 hectares of the landcovered under the scheme was released in favour of Housing CooperativeSocieties because the object of the housing societies and the schemewas the same. According to the Development Authority, the Authority/State Government had released the land only of those societies who hadeither developed or started development of colonies or had acquired thetitle to the land or had obtained exemption under section 20 of the UrbanLand (Ceiling & Regulation) Act, 1976 before publication of the finalscheme under section 50(7) of the Adhiniyam. According to theDevelopment Authority, 104.524 hectares of land covered under thescheme which was released from the scheme, the land use of the saidland was either agricultural or regional park. Release of the land havingarea of 46.116 hectares of land was in response to objections undersection 5A of the Act because of certain reasons like existing houses,religious places, different land use etc.

13.1 Thus, from the above, it cannot be said that the release ofthe land was arbitrary and/or with an object of undue favour to thosepersons whose lands have been released. As rightly submitted that evenotherwise such lands were to be acquired for residential, park andindustrial purposes, release of the land which according to the authoritywas for valid reasons or valid grounds has not prejudiced or affected theintegrity of the scheme. The end result of the release of some land isthat the total area of the scheme is lesser to that extent but the integrityof the scheme remains the same. At this stage, it is required to be notedthat some of the lands have already been used by the authority for thepurpose of a park which is used for the benefit of local people. Underthe circumstances, the third ground on which the scheme and the entireacquisition proceedings have been quashed by the High Court does notstand on its legs and the said finding is unsustainable.

14. In view of the above and for the reasons stated above, thepresent appeals are allowed and the impugned common judgment andorder passed by the High Court dismissing the writ appeals and the ABC

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Acommon judgment and order passed by the learned Single Judge declaringScheme No. 97 as having lapsed under section 54 of the Adhiniyam andquashing and setting aside the entire acquisition proceedings with respectto the lands in question, are unsustainable and the same deserve to bequashed and set aside and accordingly are hereby quashed and set aside.However, in the facts and circumstances of the case, there shall be noBorder as to costs.

Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Appeals allowed.

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