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CASE NO.: Appeal (civil)  2530 of 2007

PETITIONER: Chairman, Indore Vikas Pradhikaran’

RESPONDENT: M/s Pure Industrial Cock & Chem. Ltd. & Ors

DATE OF JUDGMENT: 15/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 2530 OF 2007 [Arising out of SLP (Civil) No. 5318 of 2007] W I T H CIVIL APPEAL NO. 2531  OF 2007 [Arising out of SLP (Civil) No. 5695 of 2007]

S.B. SINHA, J :  

1.      Leave granted.

2.      Interpretation of the provisions of Madhya Pradesh Nagar Tatha Gram  Nivesh Adhiniyam, (No. 23 of 1973) (for short, ’the Act’)  is in question in  these appeals which arise out of the judgments and orders dated 06.03.2007  passed by a Division Bench of the High Court of Madhya Pradesh in Writ  Petition No. 9396 of 2006 and Writ Appeal No. 462 of 2006. 3.      Before we advert to the said question, we may notice the admitted fact  of the matter.    

4.      The said Act was enacted to make provisions for planning and  development and use of land;  to make better provision of the preparation of  the development plans and zoning plans with a view to ensuring that town   planning schemes are made in a proper manner and their execution is made  effective; to constitute a Town & Country Planning Authority for proper  implementation of town and country development plan; to provide for the  development and administration of special areas through a Special Area  Development Authority; to make provision for the compulsory acquisition of  land required for the purposes connected with the said matters. The said Act  came into force with effect from  16.04.1973.

Statutory Provisions :  5.      The terms "development", "existing land use map",  "planning area",  "Town Development Scheme" and "Town and Country Development  Authority", which are relevant for the purpose of this case, have been  defined in Section 2(f),  2(i), 2(o), 2(u) and 2(v) of  the Act respectively in  the following terms :  

"2(f)   "development" with its grammatical variations          means the carrying out of a building, engineering,          mining or other operation in, on over or under          land, or the making of any material change in any          building or land or in the use of either, and          includes sub-division of any land;"

"2(i)   "existing land use map" means a map indicating  the use to which lands in any specified area are put

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at the time of preparing the map, and includes the  register prepared, with the map giving details of  land-use."                  "2(o)   "planning area" means any area declared to be a          planning area under this Act: Non-Planning area          shall be construed accordingly."

"2(u)   "Town Development Scheme" means a scheme  prepared for the implementation of the provisions  of a development plan by the Town and Country  Development Authority and includes "Scheme""

"2(v)   "Town and Country Development Authority"          means an authority established under Section 38."                                  6.      Chapter IV of the Act deals with planning areas and development  plans.  Section 13(1) empowers the State Government to constitute  planning  areas for the purposes of the said Act and define the limits thereof.  Sub- section (2) of Section 13 empowers the State Government by notification,  inter alia, to alter the limits of the planning area so as to include therein or  exclude therefrom such areas, as may be specified in the notification; to  amalgamate two or more planning areas so as to constitute one planning  area;  to divide any planning area into two more planning areas; and   to  declare that the whole or part of the area constituting the planning area shall  cease to be a planning area or part thereof.   Sub-section (3) of Section 13 of  the Act provides for a non-obstante clause, in terms whereof, the local  authority mentioned therein shall in relation to the planning areas from the  date of the notification issued under sub-section (1) cease to exercise the  powers, perform the functions and discharge the duties which the State  Government or the Director is competent to exercise.  Section 14 of the Act  enables the Director to prepare an existing land use map and  development  plan.  Section 15 enables the Director to carry out the survey and prepare an  existing land use map and forthwith publish the same in the manner laid  down therein.  Once such a plan is published, no person is authorised to  institute or change the use of any land or carry out any development of land  for any purpose other than that indicated in the existing land use map  without the permission in writing of the Director.  

7.      Clause (b) of sub-section (1) of Section 16, however,  provides :

"(b)    no local authority or any officer or other authority  shall, notwithstanding anything contained in any  other law for the time being in force, grant  permission for the change in use of land otherwise  than as indicated in the existing land use map  without the permission in writing of the Director."                       

8.      Section 17 provides as to what should be the contents of the  development plan.  Section 17A(1) provides for constitution of a committee;  sub-sections (2) and (3) whereof read as under :

"(2)    The Committee constituted under sub-section (1),  shall :

(a)     consider and suggest modifications and          alterations in the draft development plan          prepared by the Director under section 14;

(b)     hear the objections after the publication of          the draft development plan under section 18          and suggest modifications or alterations if          any; to the Director.

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(3)     The Convenor of the Committee shall record in  writing all the suggestions, modifications and  alterations recommended by the committee under  sub-section (2) and thereafter forward his report to  the Director."

9.      Section 18 of the Act provides for publication of a development plan;  in terms whereof the objections and suggestions in writing are invited with  respect thereto.  The notice in terms of the said provision is to specify in  regard to the draft development plan, inter alia, the following particulars :

"(i)    the existing land use maps;         xxx             xx                      xxx (iv)    the provisions for enforcing the draft development  plan and stating the manner in which permission  for development may be obtained."

10.     Section 19 provides for sanction of development plans, sub-section (2)  whereof reads as under :

"(2)    Where the State Government approves the  development plan with modification the State  Government shall, by a notice published in the Gazette,  invite objections and suggestions in respect of such  modifications within a period of not less than thirty days  from the date of publication of the notice in the Gazette."                          11.     Preparation of zoning plan is envisaged under Chapter V thereof.   Section 20 reads as under :

"20.  The Local Authority may on its own motion at any  time after the publication of the development plan, or  thereafter if so required by the State Government shall,  within six months of such requisition, prepare a zoning  plan."

12.     In the zoning plan more details of land use as indicated in the  development plan are to be indicated and,  inter alia, shall :

"(c)    allocate in detail areas or zones for residential,          commercial, industrial, agricultural,  and other          purposes;         

13.     Chapter VI of the Act deals with control of development and use of  land, provided  that the overall control of development and use of land in the  State shall vest in the State Government;  sub-section (2) of Section 24   reads as under :

       "(2) Subject to the provision of sub-section (1) and  the rules made under this Act, the overall control of  development and use of land in the planning area shall  vest in the Director with effect from such date as the  State Government may by notification, appoint in this  behalf."                                   14.     Section 25 envisages that the use and development of land shall  conform to the provisions of the development plan.  Section 38 occurring in  Chapter VII provides for establishment of a Town and Country  Development Authority, sub-sections (1) and (2) whereof read as under :

"38(1).-The State Government may, by notification,  establish a Town and Country Development Authority by  such name and for such area as may be specified in the

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notification.

       (2)     The duty of implementing the proposal in  the development plan, preparing one or more town  development schemes and acquisition and development  of land for the purpose of expansion or improvement of  the area specified in the notification under sub-section (1)  shall, subject to the provisions of this Act vest in the  Town & Country Development Authority established for  the said area." 15.     Section 49 of the Act envisages that a town development scheme may  make provision for the matters specified therein including acquisition of  land for the purposes mentioned therein as also any other work of such a  nature as would bring about environmental improvements which may be  taken up by the authority with the prior approval of the State Government.   

16.     Sub-sections (1), (2), (3) and (4) of Section 50 of the Act, which are  material for our purpose, read as under :     

       "50.(1) The Town and Country Development  Authority may, at  any time, declare its intention to  prepare a town development scheme.

       (2) Not later than thirty days from the date of such  declaration of intention to make a scheme, the Town and  Country Development Authority shall publish the  declaration in the Gazette and in such other manner as  may be prescribed.

       (3)     Not later than two years from the date of  publication of the declaration under sub-section (2) the  Town and Country Development Authority shall prepare  a town development scheme in draft form and publish it  in such form and manner as may be prescribed together  with a notice inviting objections and suggestions from  any person with respect to the said draft development  scheme before such date as may be specified therein,  such date being not earlier than thirty days from the date  of publication of such notice.

       (4) The Town and Country Development Authority  shall consider all the objections and suggestions as may  be received within the period specified in the  notice  under sub-section (3) and shall after giving a reasonable  opportunity to such persons affected thereby as are  desirous of being heard or after considering the report of  the committee constituted under sub-section (5) approve  the draft scheme as published or make such  modifications therein as it may deem fit."       

17.     A proviso has been added thereafter to sub-section (4) by Act of 2004  in terms whereof a draft scheme must be approved within the period of one  year from the publication thereof.  Section 51 provides for revision of the  draft scheme. Section 53 imposes restrictions on land use and land  development in the following terms :                          "53. As from the date of publication of the  declaration to prepare a town development scheme, no  person shall, within the area included in the scheme,  institute or change the use of any land or building or  carry out any development, save in accordance with the  development authorised by the Director in accordance  with the provisions of this Act prior to the publication of  such declaration."                   

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18.     Section 55 provides that land needed for the purpose of town  development scheme shall be deemed to be land needed for public purpose.   Section 72 empowers the State Government to supervise and control the acts  and proceedings of the officers appointed under Section 3 and the authorities  constituted under the said Act.  The State can issue directions in terms of  Section 73 of the Act.  Section 75 Section provides for delegation of powers.   Notifications : 19.     On or about 13.02.1974, the State Government issued a notification  under sub-section (1) of Section 13 of the Act constituting Indore Planning  Area, the limits whereof were defined in the schedule appended thereto.   Indisputably, it constituted only 37 villages.  The villages Bicholi and  Kanadia, with which we are concerned herein, were not included therein.

20.     The State Government in exercise of  power conferred upon it under  Section 38 of the Act issued a notification establishing the Appellant- Authority, namely, ’Indore Vikas Pradhikaran’ from 13.05.1977 in respect  of the area specified in the notification dated 13.02.1974.   

21.     On or about 30.03.1999,  the State Government delegated its power  under Sections 13 and 47A of the Act in favour of the District Planning  Committee and it in exercise of said delegated power by a notification dated  13.11.2000 amended the planning area by adding 115 villages therein which  included the said villages Bicholi and Kanadia.  By a notification dated  28.06.2002, it, however, further amended the extent of planning area by  deleting 62 villages therefrom.  Bicholi and Kanadia villages were, however,  retained in the said amended notification.   

22.     Upon compliance of the usual statutory formalities, the appellant  published a draft development plan on 27.06.2003.  The said plan was in  respect of Urban Development Scheme No.164.  Objections and suggestions  in respect thereof were called for.  Allegedly, objections and suggestions  having been filed; they were heard by the Development Planning Committee  during the period between 25.08.2003 and 03.09.2003.  By a resolution  adopted in a meeting held on 20.08.2004 a decision in anticipation of  approval of the Government  under Section 50(1) of the Act was proposed,  which included the lands of villages Bicholi and Kanadia, inter alia, for  construction of a bye-pass road of 60 metres width. A declaration of  intention to prepare a town development scheme in terms of sub-section (2)  of Section 50 was issued on 24.08.2004.  Indisputably, in terms of sub- section (3) of Section 50 of the Act, the draft town development scheme was  to be prepared within a period of two years therefrom.  On or about  02.12.2004, Respondent applied for sanction of development plans under  Section 29(1) of the Act.  We may, however, notice that on 04.01.2005, the  said draft development plans were returned by the State of Madhya Pradesh  in terms of Section 19(1) of the Act with a direction that the plans be  prepared for the projected population as in the  year 2021 and the same be  placed before the Government for approval as soon as possible.

23.     The State of Madhya Pradesh, however, issued a notification in terms  of sub-section (1) of Section 38 of the Act, inter alia, in respect of the  villages in question, namely, Bicholi and Kanadia only on 28.10.2005.  Appellant issued a notification on  18.05.2006 inviting objections in respect  of the said scheme.   A Draft Development Plan-2021 was published on  13.07.2006.

Contentions of the writ petitioner-respondents :

24.     Respondents’ lands situated in villages Bicholi and Kanadia were  within the respective jurisdictions of the Gram Panchayats constituted under  the provisions of the Madhya Pradesh  Gram Panchayat Act. The said  panchayats in terms of the provisions of the Act were ’local authorities’.   They submitted applications for grant of building plan in the year 1990 and  the same was sanctioned on or about 05.04.1991.

25.     Respondents, as noticed hereinbefore, applied for and obtained

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sanction in terms of the building bye-laws framed by the respective gram  panchayats in 1991 for grant of development plans under Section 29(1) on  02.12.2004.  The said applications were rejected by the Joint Director, Town  and Country Planning in view of the purported publication of the plan under  sub-section (2) of Section 50 of the Act.  Respondents filed a writ petition  against the said order, inter alia, praying for issuance of a writ or order in  the nature of mandamus directing the said authority to sanction the site plan  which had been submitted.  The said writ petitions were dismissed by a  learned Single Judge by an order dated 17.05.2006.  Writ appeals were  preferred thereagainst, which have been allowed by the Division Bench of  the High Court by its judgment dated 06.03.2007.

High Court Judgment :  

26.     By reason of the impugned judgment, the High Court struck down the  declaration made under Section (2) of Section 50 of the Act, opining :

(i)             Unless a development plan for an area is published and comes  into operation, a draft development scheme cannot be published by the  Town and Country Development Authority under sub-section (2) of  Section 50 of the Act. (ii)            Such a town development scheme cannot by itself without a  development plan for the area restrict the right of a person to use his  property in the manner he likes. (iii)   Although the notification issued by the Appellant-Authority had  been constituted by the State Government only in respect of the area  which was covered by the notification dated 13.02.1974, the draft  development scheme prepared by it was ultra vires, so far as the said two  villages are concerned, being beyond its territorial jurisdiction.

Submissions : 27.     Mr. K.K. Venugopal, and Mr. S.K. Gambhir, learned Senior Counsel  appearing on behalf of the appellant, submitted :

(i)     The High Court committed a serious error in interpreting the  provisions of Section 50 of the Act, inasmuch : (i) Under the Act an  existing land use map  has to be published which would indicate  broadly the land use proposed in the planning area and the areas or  zones of land allocated for the purposes mentioned therein; and (ii) As  the scheme covers the villages in question, the same could not have  been ignored.   (ii)    Having regard to the fact that the scheme provides for construction of  a bypass road of 70 feet width, any construction by the builders would  lead to haphazard development and, thus, would completely destroy  the purpose for which the land was to be reserved for planned  development of the residential area. (iii)   Undertaking of haphazard and unplanned development would carry  with it a statutory injunction provided for under Section 53 of the Act,  in terms whereof, if an existing land use map or a draft development  plan or a town development scheme is published, no person is  permitted to obtain any permission for carrying out any development  contrary thereto or inconsistent therewith.   (iv)    The materials on records established that a large number of  permissions were obtained by the private developers which if allowed  to be implemented shall result in haphazard development of colonies  and buildings and, thus, defeat the purpose of the Act. (v)      As Section 50 is not subject to the publication of a final development  plan, as would be evident from the words used therein, namely, ’at  any time’,  Section 53 would operate as soon as an intention is  expressed by issuance of a notification in terms thereof. (vi)    Section 50 of the Act must be read in the contrast with Section 20          thereof.  So    read, a town development scheme must be consistent          with the provisions of the existing land use map as well as a draft          development plan; as otherwise the purport and object for which          Section 53 has been enacted would become otiose.      

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        (vii)   The Authority constituted under Section 38 being statutorily obligated  to implement the development plan, as would appear from Sections  38(2) and 49 of the Act, the power/duty to prevent haphazard by  declaring the town development scheme must be held to be vested in  the Appellant-Authority. (viii)  The State of Madhya Pradesh having framed rules known as ’Madhya  Pradesh Bhumi Vikas Niyam, 1984’, (Rules) which are parts of the  town development scheme, keeping in view the fact that the scheme  provided for 10,000 houses for the low income group wherefor three  major roads were required to be built up having a width of 75 metres,  60 metres and 36 metres respectively as also parks, roads, colleges,  gardens, playgrounds and green belts, the purposes for which such  scheme had been framed would not be subserved, if permissions are  granted for haphazard and unplanned development. (ix)    In any event, private interest must be waived to public interest.

(x)     The High Court committed a manifest error insofar it failed to take  into consideration that the planning area having been extended by a  notification issued by the District Planning Committee, the same  would subserve the purpose of the notification dated 28.10.2005  issued under sub-section (1) of Section 38 of the Act.

28.     Mr. Banthia, the learned counsel appearing on behalf of the State had  not made any separate submission before us.

29.     Mr. C.A. Sundaram and Mr. Arun Jaitley, learned Senior Counsel  appearing on  behalf of the respondents in these appeals, on the other hand,  would submit :

(i)     The land of the respondents being outside the planning area, as  notified by the State of Madhya Pradesh constituting the Appellant- Authority, the purported town development scheme would not be  applicable in relation thereto.  Only because the planning area has  been extended by the District Planning Committee, the same would  not ipso fact enlarge the territorial jurisdiction of the Appellant- Authority.    

(ii)   Safeguard of public interest has sufficiently been taken care of in  terms of the Act.,  as upon issuance of a notification under Section 13  of the Act, the Director only is authorised to sanction a plan for  development and carry out other functions as laid down under  Sections 15, 16 and 17 of the Act. (iii)   The committee constituted under Section 17-A of the Act is the only  authority which can consider and suggest modifications in the draft  development plan prepared by the Director under Section 14,  whereafter only a draft development plan can be published in terms of  Section 18; sub-section (2) whereof in turn envisages consideration of  objections, suggestions, etc.  (iv)    Only upon completion of the procedures laid down in the said  provisions development plan can be sanctioned by the State under  Section 19 and, thus, in the event the State Government has power to  make  modification in the development plan, the same would come  into operation only from the date of publication of the notification in  the gazette issued under sub-section (4) thereof.  (v)     Procedure laid down in the provisions of the Act having not been  fulfilled, the impugned action had resulted in breach of law and, thus,  the same had rightly been struck down.  (vi)    Chapter V of the Act provides for preparation of zoning plans and the  contents thereof having been prescribed, the safeguards envisaged  under Sections 18 and 19 of the Act would take care of public interest  involved, inasmuch the overall control and development as also land  use is vested in the Director and in that view of the matter unless a  final development plan comes into being, the Appellant-Authority  cannot be held to have any jurisdiction thereover in view of  Section

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38 of the Act.

(vii)   The definition of the ’town development scheme’ as contained in  Section 2(u) of the Act presupposes existence of a sanctioned  development plan prepared as per law, and, thus, in absence thereof a  town development scheme under Section 50 cannot be made.     (viii)  In view of the fact that the State Government has issued a notification  on 28.10.2005 extending the area of operation of the Appellant- Authority, the scheme illegally notified by it would not be   invalidated.   (ix)    Gram Panchayat of the village being the competent authority at the  relevant time having sanctioned the building plan, a vested right had  accrued in favour of the first respondent and such a power having  been acknowledged and accepted under the provisions of the Act, the  same cannot be taken away.

Analysis of the statutory provisions : 30.     The Act is divided into several chapters.  It proceeds on the basis that  steps are required to be taken before a town planning scheme is given effect  to.  The State Government is in overall control of the matter relating to town  and country planning.   

         31.     The Director of Town and Country Planning, however, subject to the  control and supervision of the State, exercises such statutory powers which  are conferred upon him.  A State is divided into several regions.  A regional  plan is finalised whereupon restrictions on use of land or development  thereof can be imposed.  Such regional plan is subject to review.   

32.    Chapter IV of the Act provides for carving out planning areas and  preparation of development plans.  Development plans are required to be  prepared and finalised only in relation to the planning areas.  An area,  however, which is notified can be sub-divided into planning areas and non- planning areas.   

33.    Chapter V of the Act deals with the preparation, finalization, review  and modifications of the zonal plan wherewith we are not concerned much  in these appeals.  Chapter VI of the Act provides for control of development  and use of land.  In terms of Section 24 of the Act, the Director is to control  land use.  Preparation of development plan, prohibition of development  without permission and matters connected therewith and incidental thereto  are also dealt with in Chapter VI.  Chapter VII of the Act, however, provides  for shift of control in respect of land use and development for the hands of  the Director and, consequently of  the State to the Town and Country  Development Authority.  Section 38 provides for establishment of Town and  Country Development Authority.

       34.     The Act envisages the following steps which are required to be  complied with :         (a)     Constitution of a planning area by notification under          Section 13. (b)     Compliance of the detailed procedure set out under Sections 14  to 19, leading to sanction of the development plan under  Section 19.  The said procedure envisages compliance of  principles of natural justice. (c)     Section 38 provides for establishment of a Town and Country  Development Authority, by notification "for such areas as may  be specified in the notification".  Under sub-section (2) thereof,  duties of implementation of the development plan and  preparation of the town development scheme  have been cast   on the Town and Country Development Authority. (d)     The town development scheme is to be prepared upon  following the procedure set out under Section 50.  The said

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scheme can be prepared only when there exists a development  plan, prepared in accordance with the procedure prescribed  under the Act as envisaged under Sections 14 to 19 and after  notification under Section 38(1).  In this regard, reference may  be also be made to Section 2(u) of the Act, which describes a  town development scheme to mean a scheme prepared for  implementation of the provisions of the development plan.

35.     Before the procedure referred to hereinbefore is applied to the case at  hand, it would appear that the notification dated 13.02.1974 issued under  Section 13 of the Act extending the planning area would not include the land  of the respondents being outside its territorial jurisdiction.  By reason of  1977 Notification the villages in question in which the lands of the  respondents are situated,  Indore Development Plan, 19991 would not have  any application thereover.  The notification issued under Section 38(1) of the  Act on 09.05.1977, would, thus, be limited to the area specified under the  notification dated 13.02.1974.

36.     A Town and Country Development Authority although may have  something to do with the preparation of the draft development plan.  It  exercises complete control, subject of course to the power of the State  Government, to give directions, exercises revisional power, etc. over  implementation of the development plan by making town development  schemes.

37.    Chapter VIII of the Act deals with special areas.  Chapter IX,  however, envisages power of the State Government of supervision and  control as also to issue necessary directions.  The State has also the power to  review plans for ensuring conformity.  It may also delegate its power from  time to time.  Dissolution of authority at the hands of the State is envisaged  under Section 76 of the Act.

38.    When a planning area is defined, the same envisages preparation of  development plan and the manner in which the existing land use is to be  implemented.  A development plan in some statutes is also known as a  master plan.  It lays down the broad objectives and parameters wherewith  the development plan is to deal with.  It also lays down the geographical  splitting giving rise to preparation and finalization of zonal plans.  The zonal  plans contain more detailed and specific maters than the master plan or the  development plan.  Town planning scheme or lay-out plan contains further  details on plot-wise basis.  It may provide for the manner in which each plot  shall be dealt with as also the matter relating to regulations of development.

39.    Once, however, the existing land use is in place, subject to certain  restrictions contained in the Act, the Director would permit land use in the  same manner as is found to be existing.

40.    The old laws, in relation thereto, as also the permissions granted by  the local authorities which includes a gram panchayat are permitted to  operate till new laws are framed and/ or till new building regulations are  made.

41.    When existing land use is in place, use thereof for purposes other than  the existing land use is frozen.  However, subject to permission granted by  the Director, the development of land is not frozen.

42.    When a draft development plan is prepared, the same is subject to  grant of approval and/ or modification thereof.  We will deal with the matter  at some details a little later but at this stage, we may notice that end use of  the land is not frozen until a final sanction plan comes into being.  A town  planning scheme, as would appear from its definition contained in Section  2(4) of the Act, is prepared only for the purpose of implementation of a  development plan.  Yet again, we would deal with the question as to whether  the same would bring within its sweep the draft development plan or only  final development plan a little later, but it may be noticed that once a valid

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town planning scheme comes into force, indisputably, there may be freezing  of land use as also freezing of development and, thus, a total embargo is  placed except in such cases where the Director had granted permission.   Section 53 of the Act, however, in the event a valid town planning scheme is  made, places a total embargo both on land use as also the development.   Even the Director is denuded of its power to issue any further permission.   Existing land use, draft development plan and final development plan  envisage two-stage exercise.  In drafting or finalizing a zonal plan, a similar  exercise is undertaken.  In making a town development scheme, however,  the process undertaken is a three-stage one inasmuch as an intention therefor  is declared which entails serious consequences and, as noticed hereinbefore,  by reason thereof, a total embargo is imposed both on land use as also the  development.  For the said purpose, a time limit within which a draft town  planning scheme has to be finalized is provided but the same can be subject  to modification by the State which ordinarily should be with a view to deal  with the same in line with the final development plan.

Principal questions :  43.    In these appeals, principally, we are beset with two questions:

(i)     Whether having regard to notification dated 13.02.1974 vis-‘-vis  the expansion of the Indore Development Plan, the District  Committee in exercise of its delegated power can automatically  extend the area of operation of the appellant despite the  notification constituting it by the State whereby and whereunder its  area of operation was limited to the one covered by the notification  dated 13.02.1974 ? (ii)    Whether the appellant \026 authority can declare its intention in terms  of Section 50 of the Act before the development attained finality. Competing Interest :  44.    There are two competing interests, viz., one, the interest of the State  vis-‘-vis the general public and, two, to have better living conditions and the  right of property of an individual which although is not a fundamental right  but is a constitutional and human right.

45.    Before we embark upon the questions involved in these appeals, we  would like to make some general observations.   

46.    Town and country planning involving land development of the cities  which are sought to be achieved through the process of land use,  zoning  plan and regulating building activities must receive due attention of all  concerned.  We are furthermore not oblivious of the fact that such planning  involving highly complex cities depends upon scientific research, study and  experience and, thus, deserves due reverence.

47.    Where, however, a scheme comes into force,  although it may cause  hardship to the individual owners as they may be prevented from making the  most profitable use of their rights over property,  having regard to the drastic  consequences envisaged thereunder, the statute should be considered in such  a manner as a result whereof greater hardship is not caused to the citizens  than actually contemplated thereby.  Whereas an attempt should be made to  prevent unplanned and haphazard development but the same would not  mean that the court would close its eyes to the blatant illegalities committed  by the State and/or the statutory authorities in implementation thereof.   Implementation of such land development as also building laws should be in  consonance with public welfare and convenience.  In United States of  America zoning ordinances are enacted pursuant to the police power  delegated by the State.  Although in India the source of such power is not  police power but if a zoning classification imposes unreasonable restrictions,  it cannot be sustained. The public authority may have general  considerations, safety or general welfare in mind, but the same would  become irrelevant, as thereby statutory rights of a party cannot be taken  away.  The courts must make an endeavour to strike a balance between  public interest on the one hand and protection of a constitutional right to  hold property, on the other.    

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48.    For the aforementioned purpose, an endeavour should be made to find  out as to whether the statute takes care of public interest in the matter vis-‘- vis the private interest, on the one hand, and the effect of lapse and/ or  positive inaction on the part of the State and other planning authorities, on  the other.   

49.     The courts cannot also be oblivious of the fact that the owners who  are subject to the embargos placed under the statute are deprived of their  valuable rightful use of the property for a long time.  Although ordinarily  when a public authority is asked to perform statutory duties within the time  stipulated it  is directory in nature but when it involves valuable rights of the  citizens and provides for the consequences therefor it would be construed to  be mandatory in character.

50.    In T. Vijayalakshmi v. Town Planning Member [(2006) 8 SCC 502],  this Court held:   "15. The law in this behalf is explicit. Right of a person  to construct residential houses in the residential area is a  valuable right. The said right can only be regulated in  terms of a regulatory statute but unless there exists a  clear provision the same cannot be taken away. It is also  a trite law that the building plans are required to be dealt  with in terms of the existing law. Determination of such a  question cannot be postponed far less taken away.  Doctrine of legitimate expectation in a case of this nature  would have a role to play."

       It was further observed:

"18. It is, thus, now well-settled law that an application  for grant of permission for construction of a building is  required to be decided in accordance with law applicable  on the day on which such permission is granted.  However, a statutory authority must exercise its  jurisdiction within a reasonable time. (See Kuldeep Singh  v. Govt. of NCT of Delhi)"          51.     What would be a public purpose in such a matter has been stated in  Prakash Amichand Shah v. State of Gujarat & Others [(1986) 1 SCC 581],  whereupon the State itself relied upon, in the following terms :

"19. In order to appreciate the contentions of the  appellant it is necessary to look at the object of the  legislation in question as a whole. The object of the Act  is not just acquiring a bit of land here or a bit of land  there for some public purpose. It consists of several  activities which have as their ultimate object the orderly  development of an urban area. It envisages the  preparation of a development plan, allocation of land for  various private and public uses, preparation of a Town  Planning Scheme and making provisions for future  development of the area in question. The various aspects  of a Town Planning Scheme have already been set out.  On the final Town Planning Scheme coming into force  under Section 53 of the Act there is an automatic vesting  of all lands required by the local authority, unless  otherwise provided, in the local authority. It is not a case  where the provisions of the Land Acquisition Act, 1894  have to be set in motion either by the Collector or by the  Government."

       The impugned provision does not subserve such purpose.

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52.     It is also not a case like State of Gujarat v. Shantilal Mangaldas &  Ors. [1969 (3) SCR 341], that  when a development is made, the owner of  the property not only gets much more than what he would have got, if the  same remained undeveloped in the process but also get the benefit of living  in a developed town having good town planning.

53.     The courts should, therefore, strive to find a balance of the competing  interest. Human Right Issue :

54.     The right of property is now considered to be not only a constitutional  right but also a human right.

55.     The Declaration of Human Rights (1789) enunciates under  Article 17  "since the right to property is inviolable and sacred, no-one may be deprived  thereof,  unless public necessity, legally ascertained, obviously requires it  and just and prior indemnity has been paid".  Further  under Article 217  (IIII) of  10th December, 1948, adopted in  the General Assembly Resolution  it is stated that : (i) Everyone has the right to own property alone as well as  in association with others. (ii) No-one shall be arbitrarily deprived of his  property.      

56.     Earlier human rights were existed to the claim of individuals right to  health, right to livelihood, right to shelter and employment etc. but now  human rights have started gaining a multifacet approach. Now property  rights are also incorporated within the definition of human rights. Even  claim of adverse possession has to be read in consonance with human rights.

57.     As President John Adams (1797-1801) put it, :

                "Property is surely a right of mankind as real as liberty."  Adding,  "The moment the idea is admitted into society that property is not as sacred  as the laws of God, and that there is not a force of law and public justice to  protect  it, anarchy and tyranny commence".

58.     Property, while ceasing to be a fundamental right would, however, be  given express recognition as a legal right, provisions being made that no  person shall be deprived of his property save in accordance with law.       

Interpretation of the Act :  59.    The Act being regulatory in nature as by reason thereof the right of an  owner of property to use and develop stands restricted, requires strict  construction.  An owner of land ordinarily would be entitled to use or  develop the same for any purpose unless there exists certain regulation in a  statute or a statutory rules.  Regulations contained in such statute must be  interpreted in such a manner so as to least interfere with the right of property  of the owner of such land.  Restrictions are made in larger public interest.   Such  restrictions, indisputably must be reasonable one.  [See Balram  Kumwat v. Union of India & Ors. (2003) 7 SCC 628; Krishi Utpadan Mandi  Samiti & Ors. v. Pilibhit Pantnagar Beej Ltd. & Anr. (2004) 1 SCC 391; and  Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr. (2004) 2 SCC  747].  The statutory scheme contemplates that a person and owner of land  should not ordinarily be deprived from the user thereof by way of  reservation or designation.   

60.    Expropriatory legislation, as is well-known, must be given a strict  construction.

61.     In Hindustan  Petroleum Corporation Ltd. v.  Daius Shapur Chenai &  Ors. [(2005) 7 SCC 627], construing Section 5A of the Land Acquisition  Act, this Court  observed :

"6. It is not in dispute that Section 5-A of the Act

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confers a valuable right in favour of a person whose  lands are sought to be acquired. Having regard to the  provisions contained in Article 300-A of the  Constitution, the State in exercise of its power of  "eminent domain" may interfere with the right of  property of a person by acquiring the same but the same  must be for a public purpose and reasonable  compensation therefor must be paid.

7. Indisputably, the definition of public purpose is of  wide amplitude and takes within its sweep the acquisition  of land for a corporation owned or controlled by the  State, as envisaged under sub-clause (iv) of clause (f) of  Section 3 of the Act. But the same would not mean that  the State is the sole judge therefor and no judicial review  shall lie. (See Jilubhai Nanbhai Khachar v. State of  Gujarat.)"

       It was further stated :                          "29. The Act is an expropriatory legislation. This  Court in State of M.P. v. Vishnu Prasad Sharma  observed that in such a case the provisions of the statute  should be strictly construed as it deprives a person of his  land without consent. [See also Khub Chand v. State of  Rajasthan and CCE v. Orient Fabrics (P) Ltd.] There cannot, therefore, be any doubt that in a case of  this nature due application of mind on the part of the  statutory authority was imperative."

62.     In State of Rajasthan & Ors.  v. Basant Nahata  [JT 2005 (8) SC 171],  it was opined : "\005In absence of any substantive provisions contained in  a parliamentary or legislative act he cannot be refrained  from dealing with his property in any manner he likes.  Such statutory interdict would be opposed to one’s right  of property as envisaged under Article 300A of the  Constitution of India."

63.     In State of Uttar Pradesh v. Manohar  [(2005) 2 SCC 126], a  Constitution Bench of this Court  held :

"Ours is a constitutional democracy and the rights  available to the citizens are declared by the Constitution.  Although Article 19(1)(f) was deleted by the Forty-fourth  Amendment to the Constitution, Article 300-A has been  placed in the Constitution, which reads as follows: "300-A. Persons not to be deprived of property  save by authority of law.\027No person shall be  deprived of his property save by authority of law." This is a case where we find utter lack of legal  authority for deprivation of the respondent’s property by  the appellants who are State authorities\005"  

64.     In  Jilubhai Nanbhai Khachar & Ors. v. State of Gujarat and Anr.  [(1995) Supp. 1 SCC 596], the law is stated in the following terms : "The right of eminent domain is the right of the  sovereign State, through its regular agencies, to reassert,  either temporarily or permanently, its dominion over any  portion of the soil of the State including private property  without its owner’s consent on account of public  exigency and for the public good. Eminent domain is the  highest and most exact idea of property remaining in the

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Government, or in the aggregate body of the people in  their sovereign capacity. It gives the right to resume  possession of the property in the manner directed by the  Constitution and the laws of the State, whenever the  public interest requires it. The term ’expropriation’ is  practically synonymous with the term "eminent domain"

It was further observed :           "48. The word ’property’ used in Article 300-A must  be understood in the context in which the sovereign  power of eminent domain is exercised by the State and  property expropriated. No abstract principles could be  laid. Each case must be considered in the light of its own  facts and setting. The phrase "deprivation of the property  of a person" must equally be considered in the fact  situation of a case. Deprivation connotes different  concepts. Article 300-A gets attracted to an acquisition or  taking possession of private property, by necessary  implication for public purpose, in accordance with the  law made by Parliament or a State Legislature, a rule or a  statutory order having force of law. It is inherent in every  sovereign State by exercising its power of eminent  domain to expropriate private property without owner’s  consent. Prima facie, State would be the judge to decide  whether a purpose is a public purpose. But it is not the  sole judge. This will be subject to judicial review and it is  the duty of the court to determine whether a particular  purpose is a public purpose or not. Public interest has  always been considered to be an essential ingredient of  public purpose. But every public purpose does not fall  under Article 300-A nor every exercise of eminent  domain an acquisition or taking possession under Article  300-A. Generally speaking preservation of public health  or prevention of damage to life and property are  considered to be public purposes. Yet deprivation of  property for any such purpose would not amount to  acquisition or possession taken under Article 300-A. It  would be by exercise of the police power of the State. In  other words, Article 300-A only limits the powers of the  State that no person shall be deprived of his property  save by authority of law. There has to be no deprivation  without any sanction of law. Deprivation by any other  mode is not acquisition or taking possession under  Article 300-A. In other words, if there is no law, there is  no deprivation. Acquisition of mines, minerals and  quarries is deprivation under Article 300-A."

65.     Rajendra Babu, J (as the learned Chief Justice then was) in  Sri  Krishnapur Mutt, Udupi v. N. Vijayendra Shetty and Anr. [1992 (3) Kar.L.J.  326] observed :

"The restrictions imposed in the planning law  though in public interest should be strictly interpreted  because they make an inroad into the rights of a private  persons to carry on his business by construction of a  suitable building for the purpose and incidentally may  affect his fundamental right if too widely interpreted\005"   

66.     The question has also been addressed by a decision of the Division  Bench of this Court in Pt. Chet Ram Vashist (Dead) by LRs. v. Municipal  Corporatiopn of Delhi [(1995) 1 SCC 47], wherein R.M. Sahai, J., speaking  for the Bench opined :

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"6. Reserving any site for any street, open space,  park, school etc. in a layout plan is normally a public  purpose as it is inherent in such reservation that it shall  be used by the public in general. The effect of such  reservation is that the owner ceases to be a legal owner of  the land in dispute and he holds the land for the benefit of  the society or the public in general. It may result in  creating an obligation in nature of trust and may preclude  the owner from transferring or selling his interest in it. It  may be true as held by the High Court that the interest  which is left in the owner is a residuary interest which  may be nothing more than a right to hold this land in trust  for the specific purpose specified by the coloniser in the  sanctioned layout plan. But the question is, does it entitle  the Corporation to claim that the land so specified should  be transferred to the authority free of cost. That is not  made out from any provision in the Act or on any  principle of law. The Corporation by virtue of the land  specified as open space may get a right as a custodian of  public interest to manage it in the interest of the society  in general. But the right to manage as a local body is not  the same thing as to claim transfer of the property to  itself. The effect of transfer of the property is that the  transferor ceases to be owner of it and the ownership  stands transferred to the person in whose favour it is  transferred. The resolution of the Committee to transfer  land in the colony for park and school was an order for  transfer without there being any sanction for the same in  law."   

[See also Raju S. Jethmalani  v. State of Maharashtra  [(2005) 4 SCALE  688].

Application of the Act :  67.    While determining the questions involved in these appeals, we are not  unmindful that the purpose and object of the town development scheme is a  laudable one insofar as it purports to allocate areas covered by Scheme No.  164 for residential purposes and a bypass road of 70 feet wide is to be built  along the eastern periphery of the area covered by the Scheme.  The  question, however, would be as to whether the development can be said to  be a haphazard one or would completely destroy the purpose for which the  land was to be reserved for planned development of the residential area.

68.     The process started in the year 1974.  Only  37 villages were included  within the planning area.  It may be that with the passage of time the  requirements for a better planned city were felt, but it is difficult to conceive  that the State of Madhya Pradesh while constituting the appellant \026 authority  in terms of Section 38(1) of the Act by reason of its notification dated  09.05.1977 was wholly oblivious thereto.  When the Act came into force the  existing land use was determined.  The area for which, thus, land could be  put to use was fixed.  No land could be used for a purpose which is not  envisaged by land use.

69.    A Director who is a very high ranking officer and is answerable only  to the State is appointed under the Act to put an eye over the development  activities; be it by the developers or others.  Apart from the fact that gram  panchayat which is a local authority within the meaning of the provisions of  the Act had the occasion to consider each application for grant of sanction of  the building plans which presumably would require to be drawn directly in  terms of the building bylaws framed under a statute which in turn gave rise  to a presumption that it had received an approval of the State, in the event of  any further development the permission of the Director is necessary.  The  Director, however, being an authority under the Act was statutorily enjoined  to perform his duties within the four-corners of the statute.  Whereas the said  statutory authority is required to apply its mind before an application for

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grant of development of land is filed, which itself having regard to its wide  definition is extensive in nature,  to the requirements of law, it cannot unduly  withhold such permission if the application otherwise fulfils the statutory  conditions.  The Act itself envisages that in the event an application is not  disposed of within the time specified, a development plan would be deemed  to be sanctioned. [See Section 30(5) of the Act]  Land use, therefore, is  restricted.  The manner in which the permission for construction of building  is to be granted is also well-defined.

70.     Respondents obtained permission for development from the  competent authority for diversion of land use as far back as on 12.01.1989.   They had applied for and were granted sanction of building plan by the gram  panchayat in the year 1991.  No step was taken by the statutory authorities or  the appellant herein to notify a draft development plan.  It was not notified  till 2000.  No further step was taken pursuant thereto or in furtherance  thereof.  Respondents filed an application before the Director for grant of  permission only on 2.12.2004 which was rejected by reason of an order  dated 14.12.2004 purported to be for the following reason:

"subjected land of village Bicholi Hapsi has been  included in the proposed Development Scheme No. 164  of Indore Development Authority."

71.    We may notice two precise submissions of Mr. Venugopal at this  stage:

(i)     The development plan includes draft development plan; (ii)    Existence of any draft development plan would authorise the  appellant \026 authority to declare its intention to prepare a town  development scheme at any time.

72.    The draft development plan was published on 27.06.2003 although it  was sent for consideration of the State in terms of Section 19 of the Act on  9.10.2003.  The same was returned to the appellant \026 authority stating that  plan to be prepared for the projected population in the year 2021 on or about  4.01.2005.  A draft development plan 2021 was published only on  13.07.2007 whereas the declaration by the appellant \026 authority was notified  on 20.08.2004.    Submission of Mr. Venugopal that a development plan  would include a draft development plan is sought to be made as the statute  has interchangeably used draft development plan, sanctioned development  plan as development plan and, secondly, on the strength of clause (iv) of  Sub-section (1) of Section 18 of the Act laying down that a notice shall be  issued thereunder containing inter alia the particulars, viz., the provisions for  enforcing the draft development plan and stating the manner in which  permission for development may be obtained.   

73.    We do not see any force in the said argument.  It is possible to enforce  a draft development plan in a given case, but the statute must specifically  provide for the same.   But, a draft development plan which has not attained   finality cannot be held to be determinative of the rights and obligations of  the parties and, thus, it can never be implemented.  Section 50 of the Act  explicitly states that the authority may declare its intention to prepare a town  development scheme which having regard to Section 2(u) of the Act must be  read to mean declaration of its implementation to prepare a scheme for the  implementation of the provisions of a development plan.

74.    We have come across some legislations, as for example, The  Himachal Pradesh Town and  Country Planning Act, 1977 where a provision  has been made for preparation of an interim development plan.  It is not in  dispute that legislations relating to town and country planning are somewhat  similar.  Had the legislature thought of implementation of a draft  development plan, they could have also provided for an interim development  plan which ipso facto would have been enforceable.

75.    A development plan even in ordinary parlance can be implemented

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only when it is final and not when it is at the draft stage, i.e., susceptible to  changes.  Not only land use may make geographical change, the other details  may also undergo a change.  The objections and suggestions invited from the  general public as also the persons affected may be accepted.  There may be  realignment.  It may undergo serious modifications.  Once the legislature has  defined a term in the interpretation clause, it is not necessary for it to use the  same expression in other provisions of the Act.  It is well-settled that  meaning assigned to a term as defined in the interpretation clause unless the  context otherwise requires should be given the same meaning.

76.     It is also well-settled that in the absence of any context indicating a  contrary intention, the same meaning would be attached to the word used in  the later as is given to them in the earlier statute.  It is trite that the words or  expression used in a statute before and after amendment should be given the  same meaning.  It is a settled law that when the legislature uses the same  words in a similar connection, it is to be presumed that in the absence of any  context indicating a contrary intention, the same meaning should attach to  the words.   [See Lenhon v. Gobson & Howes Ltd., (1919) AC 709 at 711,  Craies on Statute Law, Seventh Edition, page 141 and G.P. Singh’s  Principles of Statutory Interpretation, Tenth edition, page 278]           77.    In Venkata Subamma and another v. Ramayya and others [AIR 1932  PC 92], it is stated that an Act should be interpreted having regard to its  history, and the meaning given to a word cannot be read in a different way  than what was interpreted in the earlier repealed section.

78.    Land use, development plan and zonal plan provided for the plan at  macro level whereas the town planning scheme is at a micro level and, thus,  would be subject to development plan.  It is, therefore, difficult to  comprehend that broad based macro level planning may not at all be in place  when a town planning scheme is prepared.          79.     Once a final plan comes into force, steps inter alia are taken for  acquisition of the property.  Section 34 of the Act takes care of such a  contingency.  The town development scheme, as envisaged under Section 49  of the Act, specifically does it.  Out of nine clauses contained in Section 49,  six relate to acquisition of land for different purposes.  Clauses (v), (viii) and  (ix) only refer to undertaking of such buildings or construction of work by  the authority itself, reconstructions for the purpose of buildings, roads,  drains, sewage lines and the similar amenities and any other work of a nature  such as would bring about environmental improvements.

80.    If the submission of Mr. Venugopal is accepted, a purpose which is  otherwise not contemplated under Chapter IV would be brought in by side  door in Chapter VII.  It is well-settled that would cannot be done directly  cannot be permitted to be done indirectly.   

81.    The purpose of declaring the intent under Section 50(1) of the Act is  to implement a development plan.  Section 53 of the Act freezing any other  development is an incidence arising consequent to the purpose, which  purpose is to implement a development plan.  If the purpose of declaring  such an intention is merely to bring into play Section 53, and thereby freeze  all development, it would amount to exercise of the power of Section 50(1)  for a collateral purpose, i.e., freezing of development rather than  implementation of  a development plan.  The collateral purpose also will be  to indirectly get over the fact that an owner of land pending finalization of a  development plan has all attendant rights of ownership subject to the  restraints under Section 16.  If the declaration of intent to formulate a town  development scheme is to get over Section 16 and freeze development  activities under Section 53, it would amount to exercise of power for a  collateral purpose.

82.    A bare perusal of Sections 17 and 49 would show that it is the  development plan which determines the manner of usage of the land and the  town development scheme enumerates the manner in which such proposed

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usage can be implemented.  It would follow that until the usage is  determined through a development plan,  the stage of manner of  implementation of such proposed usage cannot be brought about.  It would  also therefore follow that what is contemplated is  the final development  plan and not a draft development plan,  since until the development plan is  finalized it would have no statutory or legal force and the land use as  existing prior thereto with the rights of usage of the land arising therefrom  would continue.

83.    To accept that it is open to the town development authority to declare  an intention to formulate a town development scheme even without a  development plan and ipso facto bring into play a freeze on usage of the land  under Section 53 would lead to complete misuse of powers and arbitrary  exercise thereof depriving the citizen of his right to use the land subject to  the permitted land use and laws relating to the manner of usage thereof.   This would be an unlawful deprivation of the citizen’s right to property  which right includes within it the right to use the property in accordance  with the law as it stands at such time.  To illustrate the absurdity to which  such an interpretation could lead it would then become open to the town  development authority to notify an intent to formulate a town development  scheme even in the absence of a development plan, freeze all usage of the  property by a owner thereof by virtue of Section 53 of the Act, and should  no development plan be finalized within 3 years, such scheme would lapse  and the authority thereupon would merely notify a fresh intent to formulate a  town development scheme and once again freeze the usage of the land for  another three years and continue the same ad infinitum thereby in effect  completely depriving the citizen of the right to use his property which was in  a manner otherwise permitted under law as it stands.

84.    The essence of planning in the Act is the existence of a development  plan.  It is a development plan, which under Section 17 will indicate the  areas and zones, the users, the open spaces, the institutions and offices, the  special purposes, etc.  Town planning would be based on the contents of the  development plan.  It is only when the development plan is in existence, can  a town planning scheme be framed.  In fact, unless it is known as to what the  contents of a possible town planning scheme would be, or alternatively,  whether in terms of the development plan such a scheme at all is required,  the intention to frame the scheme cannot be notified.

85.    Section 50 of the Act no doubt uses the word "at any time".  The  question, however, is what that would imply.  The town planning scheme, it  would bear repetition to state, is made for the purpose of implementation of  a development plan.  Ordinarily, therefore, it would envisage the time period  for coming into force of the development plan and the expiry thereof.   Unless such a construction is to be given to the words "at any time", it  would lead to manifest injustice and absurdity which is not contemplated by  the statute.  For giving an effective meaning to the provisions of Section 50  of the Act, the same is required to be read in the context of other provisions  of the statute and in particular the interpretation clauses which we have  noticed hereinbefore.   86.     Section 50(1) of the Act provide for declaration of this intention to  prepare town development scheme "at any time".  The words "at any time"  do not confer upon any statutory authority an unfettered discretion to frame  the town development scheme whenever it is so pleases.  The words "at any  time" are not charter for the exercise of an arbitrary decision as and when a  scheme has to be framed.  The words "at any time" have no exemption from  all forms of limitation for unexplained and undue delay.  Such an  interpretation would not only result in the destruction of citizens’ rights but  would also go contrary to the entire context in which the power has been  given to the authority.

87.    The words "at any time" have to be interpreted in the context in which  they are used.  Since a town development scheme in the context of the Act is  intended to implement the development plan, the declaration of intention to

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prepare a scheme can only be in the context of a development plan.  The  starting point of the declaration of the intention has to be upon the  notification of development plan and the outer limit for the authority to  frame such a scheme upon lapsing of the plan.  That is the plausible  interpretation of the words "at any time" used in Section 50(1) of the Act. [See State of H.P. & Ors. v. Rajkumar Brijender Singh & Ors., (2004) 10  SCC 585]          88.     For construing a statute of this nature, we are dealing with, rule of  purposive construction  has to be applied.  

89.    In Francis Bennion’s Statutory Interpretation, purposive construction  has been described as under :

"A purposive construction of an enactment is one which  gives effect to the legislative purpose by\027 (a) following the literal meaning of the enactment where  that meaning is in accordance with the legislative  purpose (in this Code called a purposive-and-literal  construction), or (b) applying a strained meaning where the literal  meaning is not in accordance with the legislative purpose  (in the Code called a purposive-and-strained  construction)."

[See also Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental  Action Group and Ors., (2006) 3 SCC 434 and National Insurance Co. Ltd.   v. Laxmi Narain Dhut, 2007 (4) SCALE 36]

90.    In Maruti Udyog Ltd. v. Ram Lal and Others [(2005) 2 SCC 638],  while interpreting the provisions of Industrial Disputes Act, 1947, the rule of  purposive construction was followed.

  91.  In Reserve Bank of India v. Peerless General Finance and Investment  Co. Ltd. [(1987) 1 SCC 424] this Court stated:  

"\005If a statute is looked at, in the context of its  enactment, with the glasses of the statute-maker,  provided by such context, its scheme, the sections,  clauses, phrases and words may take colour and appear  different than when the statute is looked at without the  glasses provided by the context. With these glasses we  must look at the Act as a whole and discover what each  section, each clause, each phrase and each word is meant  and designed to say as to fit into the scheme of the entire  Act\005"

92.    In ’The Interpretation and Application of Statutes’ by Reed  Dickerson, the author at p.135 has discussed the subject while dealing with  the importance of context of the statute in the following terms:

"... The essence of the language is to reflect, express, and  perhaps even affect the conceptual matrix of established  ideas and values that identifies the culture to which it  belongs. For this reason, language has been called  "conceptual map of human experience".’

[See also High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat,  (2003) 4 SCC 712, Indian Handicrafts Emporium and Others v. Union of  India and Others, (2003) 7 SCC 589 and Deepal Girishbhai Soni and Others  v. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385, para 56]

Delegation :  93.    An area conceived of under the Act, as noticed hereinbefore, consists

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of both plan area and non-plan area.  Development of plan area may be in  phases.  A master plan may be followed by a zonal plan and a zonal plan  may be followed by a town development scheme.   

94.    The limit of Indore planning area was specified by a notification dated  13.02.1974 in terms of Sub-section (1) of Section 13 of the Act.  Appellant \026  Authority was constituted by the State of Madhya Pradesh in exercise of its  power under Section 38(1) of the Act for the area comprised within the  Indore planning as specified in the notification dated 13.02.1974.  The State  in exercise of its jurisdiction under Sub-section (1) of Section 75 of the Act  delegated its power conferred upon it under Sections 13 and 47A of the Act  upon the District Planning Committee.  No power under Section 38 was  delegated.  The District Planning Committee exercises its jurisdiction  pursuant to the said delegation in terms of a notification dated 13.11.2000  extending the Indore Development Planning Area to 152 villages.  The  villages Bicholi and Kanadia were not included in the notification dated  12.08.1977.  They were included only in the notification issued by the  District Planning Committee.

95.    The District Planning Committee, however, issued another  notification amending the planning area to 90 villages only and deleting 62  villages from its earlier notification.

96.    There cannot be any doubt whatsoever that even a delegatee exercises  its power relying on or on the basis of its power conferred upon it by the  delegator, its act would be deemed to be that of the principal as has been  held by this Court in State of Orissa and Others v. Commissioner of Land  Records and Settlement,Cuttack and Others [(1998) 7 SCC 162], this Court  held: "25. We have to note that the Commissioner when he  exercises power of the Board delegated to him under  Section 33 of the Settlement Act, 1958, the order passed  by him is to be treated as an order of the Board of  Revenue and not as that of the Commissioner in his  capacity as Commissioner. This position is clear from  two rulings of this Court to which we shall presently  refer. The first of the said rulings is the one decided by  the Constitution Bench of this Court in Roop Chand v.  State of Punjab 3 . In that case, it was held by the  majority that where the State Government had, under  Section 41(1) of the East Punjab Holdings (Consolidation  and Prevention of Fragmentation) Act, 1948, delegated  its appellate powers vested in it under Section 21(4) to an  "officer", an order passed by such an officer was an order  passed by the State Government itself and "not an order  passed by any officer under this Act" within Section 42  and was not revisable by the State Government. It was  pointed out that for the purpose of exercise of powers of  revision by the State under Section 42 of that Act, the  order sought to be revised must be an order passed by an  officer in his own right and not as a delegate of the State.  The State Government was, therefore, not entitled under  Section 42 to call for the records of the case which was  disposed of by an officer acting as its delegate."

97.     Whether issuance of notification by the delegatee would automatically  extend the jurisdiction of the appellant is the question.  Before we consider  the legal issues involved, we may notice that the appellant filed an  application before the High Court wherein it was stated:

"2. The respondent no. 2 submits that though in 2004  itself the State Government had in principle agreed to  extend the area of the Indore Development Authority u/s  38 of the Adhiniyam, the said decision could not be  implemented because of certain procedural and other

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difficulties.  Subsequently, when the respondent no. 2  took up the matter with the State Government, it insisted  that in the absence of a formal request from the IDA it  could not extend its area u/s 38 of the Adhiniyam.   Accordingly, the respondent no. 2 had submitted its  formal request by its aforesaid letter dated 14/10/2005."

98.    The State, it is interesting to note, took a similar plea when the  appellant \026 authority sought permission for new Transport Nagar Scheme on  265 hectares of land situated in village Mundrla Nayata by its letter dated  23.08.2005 stating:

"Please refer the reference letter by which the Indore  Development Authority sought permission for new  Transport Nagar Scheme on 265 hectares of land situated  in village Mundrla Nayata. (1)     In this regard opinion of law department has been  received and as per that in the year 1977 the areas of  Indore Development Authority was prescribed whereas  the questioned scheme is failing beyond the prescribed  operational area. (2)     Although as per letter dated 28th June, 2002, the  planning area of Indore city is extended but the  operational area of Indore Development Authority has  not been extended.  At present, Indore Development  Plan, 1991 is in force and new Development Plan is  being prepared. (3)     Thus, the Indore Development Authority is not  competent to declare "Town Development Scheme"  beyond its prescribed operational area."

99.    Yet again, the State in exercise of its power under Section 38(1) of the  Act notified planning area confirming to the one identified by the District  Planning Committee in terms of its notification dated 28.10.2005.

How State understood it :  100.   Application of the principle of executive construction would lead to a  conclusion that the State and the appellant themselves proceeded on the  basis that in terms of the notification issued by the District Planning  Committee, the area of operation of the appellant was not extended.

101.    In  G.P. Singh’s ’Principles of Statutory Interpretation,  10th Edn. at p.  319,  it is stated :

       "But a uniform and consistent departmental practice  arising out of construction placed upon an ambiguous  statute by the highest executive officers at or near the time  of its enactment and continuing for a long period of time is  an admissible aid to the proper construction of the statute  by the Court and would not be disregarded except for  cogent reasons.  The controlling effect of this aid which is  known as ’executive construction’ would depend upon  various factors such as the length of time for which it is  followed, the nature of rights and property affected by it,  the injustice result from its departure and the approval that  it has received in judicial decisions or in legislation.

       Relying upon this principle, the Supreme Court in  Ajay Gandhi v. B. Singh having regard to the fact that the  President of the Income Tax Appellate Tribunal had been  from its inception in 1941 exercising the power of transfer  of the members of the Tribunal to the places where  Benches of the Tribunal were functioning, held construing

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sections 251(1) and 255(5) of the Income Tax  Act that the  President under these provisions has the requisite power of  transfer and posting of its members.  The court observed :  "For construction of a statute, it is trite, the actual practice  may be taken into consideration."

       Contemporary official statements throwing light on  the construction of a statute and statutory instruments  made under it have been used as contemporanea expositio  to interpret not only ancient but even recent statute both in  England and India."   

[See also S.B. Bhattacharjee v. S.D. Majumdar & Ors., Civil Appeal arising  out of S.L.P. (Civil) No. 3413 of 2006, disposed of today].

Exercise of delegated power \026 effect of :  102.   The State exercises its different power for different purposes.  Issuing  notification of a planning area, whether named or not, for the purpose of  Section 13(1) is different from the one for which a development authority is  created within the meaning of Section 38(1) of the Act.  The State in a given  situation may appoint more than one authority for the same planned area.   The State delegated its power upon the District Planning Authority under  Section 38 of the Act.  The appellant \026 authority was created for a definite  purpose.  Its jurisdiction was limited to the area notified.  When so creating,  although 1974 notification was referred to, the same was only for the  purpose of limiting the area of operation of the appellant \026 authority.  The  principle of legislation by incorporation was applied and not the principle of  legislation by reference.

103.   The difference between the two principles is well-known.  Whereas in  the case of the former, a further notification amending the ambit or scope of  the statute would be necessary, if the statute incorporated by reference is  amended, in the latter it would not be necessary.

104.   In Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors. [AIR 2005  SC 3593], this Court observed:

"9. Adopting or applying an earlier or existing Act by  competent Legislature to a later Act is an accepted device  of Legislation. If the adopting Act refers to certain  provisions of an earlier existing Act, it is known as  legislation by reference. Whereas if the provisions of  another Act are bodily lifted and incorporated in the Act,  then it is known as legislation by incorporation. The  determination whether a legislation was by way of  incorporation or reference is more a matter of  construction by the courts keeping in view the language  employed by the Act, the purpose of referring or  incorporating provisions of an existing Act and the effect  of it on the day-to-day working. Reason for it is the  courts’ prime duty to assume that any law made by the  Legislature is enacted to serve public purpose.."

105.   It is furthermore a well-settled principle of law that a delegatee must  exercise its jurisdiction within the four-corners of its delegation.  If it could  not exercise its delegated power for the purpose of creation of the appellant  authority or extended its jurisdiction, in our opinion, it cannot be done by  amendment of a notification issued under Section 13(1) of the Act.

106.    We may at this juncture notice the effect of the notifications issued by  the authority :                  ?       It is a matter of record that the notification issued on  13.02.1974 under Section 13 notifying the planning area, did

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not include land of Respondent No. 1. ?       It is also a matter of record that the Indore Development Plan,  1991 notified in 1975 does not admittedly include the village in  which the land of Respondent No. 1 is situate. ?       The notification issued under Section 38(1) of the Act on  09.05.1977 is also limited to the area specified in the  notification dated 13.02.1974 and admittedly does not include  the land of Respondent No. 1.

107.   Admittedly, the villages in question had been included by the State in  its notification issued on 28.10.2005.  Prior thereto, the said villages having  not been included within the area of operation of the appellant authority, any  action taken either by way of its intention to frame a town planning scheme  or otherwise shall be wholly illegal and without jurisdiction.  It would render  its act in relation to the said villages a nullity.

108.   It is, therefore, difficult for us to accept the submission of Mr.  Venugopal and Mr. Gambhir that the notification dated 13.11.2000  subsumes in the notification dated 12.08.1977.

109.   For the reasons aforementioned, we do not have any other option but  to uphold the impugned judgment of the High Court.

110.   We may, however, observe that several other contentions, as noticed  hereinbefore, have been raised before us but we do not find any necessity to  go thereinto.   Should we issue Mandamus ?  111.   Before parting, however, we must notice a submission of Mr. C.A.  Sundaram, learned counsel appearing on behalf of the respondents, to the  effect that the High Court committed a manifest error insofar as it limited its  direction only to the following:

"\005The impugned order dated 17.5.2006 of the learned  Single Judge in W.P. No. 4 of 2005 is set aside and the  notification dated 24.8.2004 of the Indore Development  Authority insofar as it applies to village Bicholi Hapsi  and the communication of the Joint Director, Town and  Country Planning, Indore to the appellant that he cannot  approve the plan for construction of the house of the  appellant because of the publication of the Draft Scheme  No. 164 U/s. 50(2) of the Adhiniyam are quashed and the  Director is directed to reconsider the application of the  petitioner for permission to undertake construction of the  house in accordance with the provisions of the  Adhiniyam and the observations in this judgment\005"

112.   The learned counsel would submit that the said direction is not correct  as the High Court should have directed the Director to consider the  respondents’ application in accordance with the law as it existed at the  relevant point of time.  We do not subscribe to the said view as it is now  well-known that that where a statute provides for a right, but enforcement  thereof is in several stages, unless and until the conditions precedent laid  down therein are satisfied, no right can be said to have been vested in the  person concerned.    113.   In Director of Public Works v. Ho Po Sang [1961 AC 901 : (1961) 2  All ER 721], the Privy Council considered the said question having regard to  the repealing provisions of the Landlord and Tenant Ordinance, 1947 as  amended on 9-4-1957. It was held that having regard to the repeal of  Sections 3-A to 3-E, when applications remained pending, no accrued or  vested right was derived stating: "In summary, the application of the second appellant for  a rebuilding certificate conferred no right on him which  was preserved after the repeal of Sections 3-A to 3-E, but  merely conferred hope or expectation that the Governor- in-Council would exercise his executive or ministerial

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discretion in his favour and the first appellant would  thereafter issue a certificate. Similarly, the issue by the  first appellant of notice of intention to grant a rebuilding  certificate conferred no right on the second appellant  which was preserved after the repeal, but merely  instituted a procedure whereby the matter could be  referred to the Governor-in-Council. The repeal  disentitled the first appellant from thereafter issuing any  rebuilding certificate where the matter had been referred  by petition to the Governor-in-Council but had not been  determined by the Governor."

[See also Lakshmi Amma v. Devassy  [1970 KLT 204]

114.    The question again came up for consideration in Howrah Municipal  Corpn. v. Ganges Rope Co. Ltd. [(2004) 1 SCC 663], wherein this Court  categorically held :          "The context in which the respondent Company  claims a vested right for sanction and which has been  accepted by the Division Bench of the High Court, is  not a right in relation to ownership or possession of any  property for which the expression vest is generally  used. What we can understand from the claim of a  vested right set up by the respondent Company is that  on the basis of the Building Rules, as applicable to their  case on the date of making an application for sanction  and the fixed period allotted by the Court for its  consideration, it had a legitimate or settled expectation  to obtain the sanction. In our considered opinion, such  settled expectation, if any, did not create any vested  right to obtain sanction. True it is, that the respondent  Company which can have no control over the manner  of processing of application for sanction by the  Corporation cannot be blamed for delay but during  pendency of its application for sanction, if the State  Government, in exercise of its rule-making power,  amended the Building Rules and imposed restrictions  on the heights of buildings on G.T. Road and other  wards, such settled expectation has been rendered  impossible of fulfilment due to change in law. The  claim based on the alleged vested right or settled  expectation cannot be set up against statutory  provisions which were brought into force by the State  Government by amending the Building Rules and not  by the Corporation against whom such vested right or  settled expectation is being sought to be enforced. The  vested right or settled expectation has been nullified not  only by the Corporation but also by the State by  amending the Building Rules. Besides this, such a  settled expectation or the so-called vested right cannot  be countenanced against public interest and  convenience which are sought to be served by  amendment of the Building Rules and the resolution of  the Corporation issued thereupon."

115.    In Union of India v. Indian Charge Chrome [(1999) 7 SCC 314], yet  again this Court emphasized :          "The application has to be decided in accordance  with the law applicable on the date on which the  authority granting the registration is called upon to apply  its mind to the prayer for registration."

116.    In S.B. International Ltd. v. Asstt. Director General of Foreign Trade  [(1996) 2 SCC 439], this Court repelled a contention that the authorities  cannot take advantage of their own wrong viz. delay in issuing the advance

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licence, stating :          "We have mentioned hereinbefore that issuance of  these licences is not a formality nor a mere ministerial  function but that it requires due verification and  formation of satisfaction as to compliance with all the  relevant provisions."

       [See also Kuldeep Singh v. Govt. NCT of  Delhi [(2006) 5 SCC 702]

117.    For the reasons aforementioned, there is no merit in these appeals  which are dismissed accordingly.  There shall, however, be no order as to  costs.