STATE OF BOMBAY Vs. DAVALBHAI NARANBHAI PATEL

JUDGEMENT

(1.) [His Lordship after stating the facts, proceeded]. The main point, which arises for consideration in the appeal is whether acquisition of the suit land was bad on the ground that it was included in the Draft Town Planning Scheme. The submission of Mr. Gupte, learned Counsel for the plaintiff, was that once a land was included in a draft scheme, the power of acquiring it under Section 6 of the Land Acquisition Act was lost to the State Government. His second submission was that though, under Section 6 of the Land Acquisition Act, the Government had power to acquire land needed for a public purpose, before such land could be acquired, the land must be capable of being so acquired. He argued that, if on account of the existence of another law, a land was rendered incapable of acquisition, then, the power of the acquiring authority to acquire the land was lost. He contended that the Town Planning Act of 19.15 contained a number of provisions which showed that once land became the subject -matter of a town planning scheme, then, it could not be acquired under the Land Acquisition Act. It is, therefore, necessary, first, to examine the sections of the Town Planning Act on which Mr. Gupte relied for contending that the Act debarred the acquiring authority from exercising the power conferred on it by Section 6 of the Land Acquisition Act and which provisions, according to him, remove the suit land from the category of lands capable of being acquired. Section 3 of the Town Planning Act provides that a town planning scheme may make provision for certain matters, which are mentioned in that section. Then Section 8 of the 'Act provides that a town planning scheme may be made in accordance with the provisions of the Act in respect of any land, which is in course of development or which is likely to be used for building purposes. Sub -section (i) of Section 9 provides that the local authority may by resolution, declare its intention to make a scheme in respect of the whole or any part of such land and of any land which is in the vicinity of such land. Sub -section (2) of Section 9 provides that, within twenty -one days from the date of such declaration, the local authority shall despatch a copy of the resolution to the Government for publication in the official gazette and, then, shall apply to the State Government for sanction for the making of such scheme. Then, Sub -section (6) of Section 9 provides that, after the receipt of such application and after making such inquiry as it may think fit, the State Government may by notification in the official gazette, either give sanction to make such scheme with or without modifications and subject to such conditions as it may think fit to impose or refuse to give sanction. Section 10 provides that, within 12 months from the date of the notification, sanctioning the town planning scheme, the local authority shall, in consulation with the owners, prepare and publish, in the prescribed manner, a draft scheme for the area in respect of which sanction has been given. Section 11 mentions what the contents of the draft scheme shall be. Then Section 15 imposes certain restrictions on the owners of lands situated within the town planning area. It provides that, after the declaration of intention to make a scheme no person shall, within the area included in the scheme, erect or proceed with any building or work unless such person has applied for and obtained the necessary permission which shall be contained in a commencement certificate granted by the local authority in the form prescribed. Section 14 empowers Government to grant or withhold sanction for the draft scheme. Section 29 of the Act provides that, after a draft scheme has been sanctioned, the State Government shall appoint an arbitrator. Then Section 30 provides that, in accordance with the prescribed procedure, the arbitrator shall perform certain duties, which are mentioned in Sub -sections (1) to (10). Mr. Gupte especially drew our attention to the two provisos to Sub -section (10) of Section 30. The first proviso empowers the arbitrator to make variations from the draft scheme, but, enacts that any variation, estimated by the arbitrator to involve an increase of ten per cent, in the costs of the scheme, as described in Section 16, shall require the sanction of the Provincial Government. The second proviso, among other things, provides for an appeal to the Provincial Government from a decision of the arbitrator varying the scheme substantially. Then Section 31 provides that, except in certain matters, arising from some clauses of Section 30 and, subject to the provisos contained in Clause (10) of Section 30, every decision of the arbitrator shall be final and conclusive and binding on all persons. Then there are provisions for the appointment of a Tribunal. Then Section 40 provides that, after the Tribunal has decided all matters, which it is entitled to decide, the Government may, by notification in the official gazette, sanction the final scheme or refuse to give such sanction, provided that, in sanctioning the scheme, the State Government may make such modifications as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or informality. Mr. Gupte's contention is that, if all these provisions are read as a whole, then, the legislative intent is quite clear that once a draft scheme is sanctioned by the Government, the only authority which has got the power of making any variation in the scheme is the arbitrator alone and nobody else.

(2.) MR . Gupte's contention was that though the Act confers on the Government power to modify or vary a scheme, before it is sanctioned under Section 14(2), no such power is conferred on it after such sanction is given and that the power to vary or modify a scheme thereafter vests only in the arbitrator, the power of the Government being restricted only to sanction a variation made by the arbitrator involving increase in cost of ten per cent, or of hearing an appeal from a decision of the arbitrator to vary a scheme substantially. It is not necessary for us to examine the Act with a view to ascertain as to what powers the Government possess after a final scheme is sanctioned, because, the facts of the present case do not demand an examination of the Act from this point of view. In this case, we are only concerned with determining as to what is the effect of a sanctioned draft scheme which is awaiting preparation of a final scheme. Alter a draft scheme has been sanctioned, the Act provides by Section 29 that an arbitrator shall be appointed. The duties of the arbitrator are mentioned in Sub -section (1) of Section 30 of the Act. It is true, that, so far as the matters provided for in this sub -section are concerned, duty is cast upon the arbitrator only and the Government has neither any power nor is any duty cast on it in connection with the draft scheme, at this stage, except those which are mentioned in the provisos to Sub -section (10) of Section 30. The first proviso, as already mentioned, provides that, in case there is a variation which involves an increase in costs of ten per cent., then, the sanction of the Provincial Government is necessary. The second proviso provides for an appeal to the Provincial Government. Section 31 provides that, except in these two matters, the decision of the arbitrator, except in regard to matters mentioned in Clauses (3A), (3B), (3C), (4), (5), (6) and (9) of Section 30, shall be final and conclusive. Therefore, Mr. Gupte is right in his submission that, after a draft scheme is sanctioned, the matter is mostly in the hands of the arbitrator and it is that Officer whose duty it is to consider and sanction a variation of the scheme and the Government has no power of variation, their powers being confined to sanctioning variation made by an arbitrator or hearing an appeal therefrom. But this conclusion does not touch the point which requires to be decided in the appeal. The question that requires to be considered is whether these provisions of the Act either curtail the powers of the acquiring authority to acquire land under Section 6 of the Land Acquisition Act and/or they affect the land situated in a scheme area in such a way that it ceases to be the subject -matter of acquisition. Mr. Gupte began his argument by submitting that Section 6 of the Land Acquisition Act contains within it a limitation as to the kind of land which can be acquired by the Government. We are not in agreement with this submission of Mr. Gupte. In our opinion, Section 6 of the Land Acquisition Act covers all lands and does not exclude any land. Of course, it is open to the Legislature to provide that certain types of land shall not be acquired. If any such provision is made, then, it would be binding, subject to such objections which could be raised under the law of the land. However, an examination of the provisions of the Bombay Town Planning Act clearly reveals that they do not deal with the question of transfer of lands before a final scheme is sanctioned. It is only after a final scheme is prepared that, under Section 41 of the Town Planning Act, all rights in original plots which have been reconstituted stand determined and the reconstituted plots become subject to the rights settled by the arbitrator. But, before a final scheme is sanctioned, there is nothing in the provisions of the Act which deal with the subject of transfer of lands. The main object of the Land Acquisition Act is to transfer ownership of land from private persons to Government or local authority or company free from all encumbrances. We are unable to find anything in the Town Planning Act nor is our attention been drawn to any provision therein, which would justify the submission that the power of the Government to acquire land was taken away the moment a draft scheme was sanctioned.

(3.) THE main argument of Mr. Gupte which requires examination is that acquisition of land for a public purpose would vary a draft scheme and such a variation cannot be effected by the Government by the use of the machinery of acquisition. Under Section 30(1), a duty has been cast upon the arbitrator to demarcate areas allotted to, or reserved for, public or municipal purposes. If he so demarcates, then, his decision will become final, conclusive and binding under Section 31, But, in our opinion, this does not mean that, during the pendency of the draft scheme and before the final scheme is sanctioned, the Government is totally prevented from acquiring any land for a purpose other than that for which it may have been assigned in the draft scheme. All that these provisions mean is that the Government would have to approach the arbitrator and obtain his sanction for using the land for the intended purpose. But that does not take away the lands situated in a town planning scheme from the category of lands which are liable to be acquired under Section 6 of the Land Acquisition Act. In the present case, the correspondence shows that the local authority had consulted the arbitrator in the matter of the acquisition of this land and the arbitrator had given his approval. But, we do not propose to rest our decision on this approval. We do not propose to do so because the approval appears to have been obtained in private correspondence and not under the machinery devised by the Act. We propose to rest our judgment on the broad ground that the Act does not remove the lands situated in a town planning area from being acquired under the Land Acquisition Act. If the Legislature had intended such far reaching effect, it would have made a specific and clear provision on that subject and would not have left the same to be inferred indirectly from an examination of the provisions of the Act. It is true that an Act may be by implication amended, but, in order that such a result may be achieved, the implication must be inevitable and must necessarily flow from the language of the Act, For these reasons, we are not in agreement with the submission of Mr. Gupte that the provisions, to which he had drawn our attention, deprive the Government of its powers to acquire land situated in a town planning area or that such land had become incapable of being acquired under the machinery of the Land Acquisition Act.