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PETITIONER: DATTATRYA SHANKARBHAT AMBALGI & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT01/08/1989

BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) SHARMA, L.M. (J)

CITATION:  1989 AIR 1796            1989 SCR  (3) 616  1989 SCC  (4) 532        JT 1989 (3)   259  1989 SCALE  (2)176

ACT:      Constitution of India, 1950: Articles 14 and 31-- Vires of  Sections  10,  11 and 23 of the Urban  Land  (Ceiling  & Regulation)  Act, 1975. Maharashtra Regional and Town  Plan- ning  Act, 1966.’ Sections 125 and 126---Land  reserved  for public  Purpose--Acquisition and  compensation  thereof--Ap- plicability of Land Acquisition Act, 1894.      Urban Land (Ceiling & Regulation) Act, 1976.’  Sections 10,  11 and 23--Whether violative of Articles 14 and  31  of the Constitution of India, 1950.

HEADNOTE:     The  State  Government sanctioned  development  plan  in respect  of and situated in Sholapur under  the  Maharashtra Regional  and Town planning Act, 1966. Though  the  sanction covered the land of petitioners also, some of their land was reserved for public purpose under the said Act.     Thereafter,  the Urban Land (Ceiling & Regulation)  Act, 1976 came into force and proceedings for acquisition of land in excess of the ceiling limit were initiated. Against  such proceedings,  the petitioners have approached this Court  by way of writ petitions.     The  petitioners  contended that the Urban  Ceiling  Act would  not apply to the lands reserved for a public  purpose under the Town Planning Act and that the proceedings  should be quashed. They also challenged the constitutional validity of sections 10, 11 and 23 of the Ceiling Act, as being ultra vires of Articles 14 and 31, and prayed for a Writ of Manda- mus  restraining  the State Government  from  acquiring  the petitioners’ land under the Ceiling Act. Dismissing the writ petitions,     HELD: 1.1. The Act has been placed in the Ninth Schedule to  the Constitution at SI. No. 132 and  consequently  comes under the protective umbrella of Article 31-B of the Consti- tution. [620A-B]    1.2.  It  is  not the case of the  petitioners  that  the provisions of the 617 Ceiling  Act in any way damage of destroy a basic or  essen- tial feature of the Constitution or its bask structure. Also there is no statutory provision either in the Ceiling Act or

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in the Town Planning Act, which would exclude the  operation of the Ceiling Act with regard to lands reserved for  public purpose under the Town Planning Act. [620C-E]     Maharao  Sahib  Shri Bheem Singh v. Union of  India  and others, [1985] Suppl. 1 S.C.R. 862; applied.     2.1.  The primary object and the purpose of the  Ceiling Act is to provide for the imposition of a ceiling an  vacant land  in urban agglomerations, for the acquisition  of  such land  in  excess of the ceiling limit to regulate  the  con- struction of building on such land and for matters connected therewith,  with a view to preventing the  concentration  of urban land in the hands of a few persons and speculation and profiteering therein, to bring about an equitable  distribu- tion of land is urban agglomerations to subserve the  common good, in furtherance of the Directive Principles of Articles 39(b) and (c). The land to the extent which falls within the ceiling area stands in a class different from the land which is  in  excess of the ceiling area and is liable to  be  de- clared  surplus to give effect to the purpose and object  of the Ceiling Act. [620G-H; 621A, B & G]     2.2. In the instant case, the purpose and object of  the Ceiling Act is entirely different from just acquiring a  bit of land here or a bit of land there for some public purpose. The Ceiling Act is a self-contained Code having an  overrid- ing provision in Section 42. Once the land fails beyond  the ceiling  limit prescribed by the Ceiling Act and is  capable of  being acquired as surplus land under Section 10  thereof it  would he wholly inappropriate to acquire the  same  very Land or a portion thereof under the Town planning Act  inas- much  as it would inter alia apparently result in misuse  of public  funds by granting higher compensation when the  pur- pose of acquisition can he achieved on payment of the lesser amount  of  compensation  prescribed in Section  11  of  the Ceiling Act. [624A, B, F & G]     Union of India etc. v. Valluri Basavaiah Chowdhary  etc. etc.,  [1979]  3 S.C.R. 802; State of Gujarat  &  Others  v. Parshottamdas  Ramdas Patel & Others, [1988] 1  S.C.R.  997; relied on.      Nagar  Improvement Dust & Another v. Vithal Rao &  Oth- ers,[1973] 3 S.C.R. 39, distinguished.     Prakash  Chand  Amichand Shah v. State  of  Gujarat  and others, [1986] 1 S.C.C. 581; referred to. 618     3.  The  alleged discrimination that if the  purpose  of reservation  is construction of buildings, the land will  be given  compensation under the Ceiling Act whereas  when  the purpose  of reservation is parks, gardens etc.  compensation would be given under the Town Planning, Act, does not exist. The provisions of the Ceiling Act are applicable with regard to  vacant land and if for same fortuitous  circumstances  a particular category of land does not fall within the defini- tion of vacant land the provisions with regard to the vacant land  can obviously not be applied to such land.  The  lands falling under the two categories constitute separate classes and cannot consequently be treated alike. [624B, C & D]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition Nos. 1830-32 of 1981. (Under Article 32 of the Constitution of India).     U.R. Lalit, V.N. Ganpule, A.B. Lal and Ms. Punam  Kumari for the Petitioners.     V.C. Mahajan, Ms. A Subhashini, P.H. Parekh, A.S. Bhasme

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and A.M. Khanwilkar for the Respondents. The Judgment of the Court was delivered by     OJHA, J. The petitioners in these petitions under  Arti- cle  32  of the Constitution hold land within  the  city  of Sholapur  in  the  State of Maharashtra.  According  to  the petitioners development plan has been sanctioned with regard to land situated m the city of Sholapur including the  peti- tioners’ land under the Maharashtra Regional and Town  plan- ning  Act, 1976 (hereinafter referred to as the  Maharashtra Act No. 37 of 1966) and some land of the petitioners was re- served  for  public purpose under that Act. The  Urban  Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as the  Act was brought into force on 28th February,  1976  and proceedings for acquisition of vacant land in excess of  the ceiling  limit placed under the Act were  initiated  against the  petitioners. These writ petitions have been  filed  for the following reliefs:               (a) It may be declared that the Urban  Ceiling               Act  does  not apply to lands reserved  for  a               public purpose under the Maharashtra  Regional               Town Planning Act, 1966:               (b)The proceedings for determination of  ceil-               ing be declared void and quashed so far as the               lands are reserved for public purpose;               619               (c)  The State Government be  restrained  from               taking  any action under Section 10(3) of  the               Ceiling Act;               (d) The final statement under Section 9 of the               Ceiling Act be amended suitably;               (e)  A  Writ of Mandamus or in the  nature  of               Mandamus  be  issued  restraining  the   State               Government or its agents from acquiring and/or               taking possession of final plots Nos. 26,  22,               42, 28A and 44A/1;               (f) Sections 10, 11 and 23 of the Ceiling  Act               be declared ultra vires of Articles 14 and  31               of the Constitution;               (g)  Any other order and/or direction as  this               Hon’ble Court may deem fit, be passed.     It  has been pointed out by the learned counsel for  the petitioners  that Section 125 of the Maharashtra Act No.  37 of  1966 contemplates, inter alia, that any  land  required, reserved  or designated in a development plan for  a  public purpose  shall  be  deemed to be land needed  for  a  public purpose within the meaning of the Land Acquisition Act, 1894 whereas  Section  126  thereof contains  the  procedure  for acquisition of land required for public purposes.  According to  learned counsel if land is acquired as  contemplated  by Sections  125 and 126 aforesaid, the provisions of the  Land Acquisition  Act shall apply to the acquisition of the  said land with the modification that the market value of the land shall  be  computed as contemplated by  sub-section  (3)  of Section 126 whereas if the land was acquired under the  Act, compensation  payable would be much less as contemplated  by Section  11  of the Act and that too with a ceiling  of  two lakhs  of rupees as provided by sub-section (6) thereof.  It has  been  urged that it is left to the sweet  will  of  the authorities concerned to acquire land either under  Sections 125  and 126 of the Maharashtra Act No. 37 of 1966 or  under the  provisions of Section 10 of the Act and that  since  in the  event of proceedings for acquisition being taken  under Section 10 of the Act as is sought to be done in the case of the  petitioners the compensation payable would be far  less than  the  compensation payable if the acquisition  is  made

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under  the  Maharashtra Act No. 37 of  1966,  discrimination under Article 14 of the Constitution was writ large, and  in this view of the matter the petitioners are entitled to  the reliefs claimed in these writ petitions. Having heard learned counsel for the parties, we are of the 620 opinion  that  none of the reliefs prayed for  in  the  writ petitions  can  be granted to the petitioners. At  the  very outset,  it may be pointed out that the Act has been  placed in  the 9th Schedule to the Constitution at SI. No. 132  and consequently comes under the protective umbrella of  Article 31-B of the Constitution. In Maharao Sahib Shri Bheem  Singh v.  Union of India and others, [1985] Suppl. 1  S.C.R.  Page 862  it has been held by a Constitution Bench of this  Court that  the  Act  is constitutionally valid  save  and  except Section 27(1) to the extent mentioned in the judgment.  With regard to sub-section (6) of Section 11, it has specifically been  held at page 879 of the Report that  this  sub-section which  provides that compensation payable under  Section  11 shall  in no case exceed two lakhs of rupees is  valid.  The amount thus payable is not illusory and the provision is not confiscatory. Rupees two lakhs are not like a earthing  even if the excess land may be a fortune. In this connection,  it may be pointed out that it has not been urged by the learned counsel  for the petitioners that the provisions of the  Act which  have been impugned in the present writ  petitions  in any  way damage or destroy a basic or essential  feature  of the Constitution or its basic structure. No statutory provi- sion either in the Act or even in the Maharashtra Act No. 37 of 1966 has been brought to our notice excluding the  opera- tion  of  the Act with regard to lands reserved  for  public purpose  under  the Maharashtra Act No. 37 of 1966.  On  the other  hand,  there is a specific  overriding  provision  in Section 42 of the Act which provides that the provisions  of this  Act shall have effect notwithstanding anything  incon- sistent  therewith  in any other law for the time  being  in force or any custom usage or agreement or decree or order of a Court, Tribunal or other authority. It is in this view  of the  matter  that  we are of the opinion that  none  of  the relief  prayed  for  in the present writ  petitions  can  be granted.     What has, however, been urged by the learned counsel for the petitioners is that notwithstanding the specific  relief (f) referred to above, the petitioners are really not  chal- lenging the validity of Sections 10, 11 & 23 of the Act  but they  are challenging the action which is being  taken  with regard  to  the petitioners’ land on the ground that  it  is discriminatory.  We  find no substance  in  this  submission either.     In Union of India etc. v. Valluri Basavaiah Chaucer etc. etc.,  [1979]  3  S.C.R. Page 802 it was pointed  out  by  a Constitution Bench of this Court that the primary object and the purpose of the Act as the long title and preamble  show, is to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit to regulate the construction of 621 buildings on such land and for matters connected  therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and  profiteering therein,  and  with a view to bringing  about  an  equitable distribution of land in urban agglomerations to subserve the common  good, in furtherance of the Directive Principles  of Article  39(b)  and (c). That this was the  object  and  the purpose of the Act has been reiterated in a recent  decision

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of this Court in State of Gujarat & others v.  Parshottamdas Ramdas Patel & Others, [1988] 1 S.C.R. Page 997.     It is in this background that the submission of  learned counsel  for  the petitioners about  discrimination  in  the matter of implementation or taking action under the Act  has to  be considered. While elaborating this argument  of  dis- crimination  it was pointed out by learned counsel  for  the petitioners that if land belonging to ’A’ and ’B’ within  an urban  agglomeration is reserved for a public purpose  under development  scheme and ’A’ is holding land  within  ceiling area whereas ’B’ holds land in excess of such ceiling  area, ’A’  will get compensation under the Maharashtra Act No.  37 of 1966 whereas ’B’ will get compensation under the  Ceiling Act and the basis and method of compensation will drastical- ly  vary. In support of this submission reliance was  placed on  a decision of this Court in Nagpur Improvement  Trust  & Another v. Vithal Rao & Others, [1973] 3 S.C.R. Page 39.  In that  case land was sought to be acquired under  the  Nagpur Improvement  Trust Act. 1936. In a petition  under  Articles 226  and 227 of the Constitution the validity of the  Nagpur Improvement  Trust  Act  was challenged inter  alia  on  the ground  that the said Act was in violation of Article 14  of the Constitution inasmuch as it empowered the acquisition of lands  at  prices  lower than those which  could  have  been payable if they had been acquired under the Land Acquisition Act. The writ petition was allowed by the High Court and  it was  held that paragraphs 10(2) and 10(3) in so far as  they added a new clause 3(a) to section 23 and a proviso to  sub- section (2) of section 23 of the Land Acquisition Act,  1894 were ultra vires as violating the guarantee of Article 14 of the Constitution.     Suffice  it  to say, so far as this submission  is  con- cerned  that the land to the extent which falls  within  the ceiling area stands in a class different from the land which is  in  excess of the ceiling area and is liable to  be  de- clared  surplus to give effect to the purpose and object  of the  Act.’  What is the purpose and object of  the  Act  has already  been  noticed earlier. Further  unlike  the  Nagpur Improvement Trust Act, 1936 the validity whereof was  ’chal- lenged in the case of Vithal Rao 622 (supra),  the Act has been placed in the 9th Schedule. As  a result thereof the Act comes within the protective  umbrella of Article 31-B of the Constitution which was not  available to the Nagpur Improvement Trust Act.     The  decision in the case of Vithal Rao (supra) came  up for consideration before a Constitution Bench of this  Court with reference to Bombay Town Planning Act, 1954 in  Prakash Chand Amichand Shah v. State of Gujarat and others, [1986] 1 S.C.C. Page 581. It was held:               "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  ulti-               mate  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  provi-               sions  for future development of the  area  in               question. The various aspects of a Town  Plan-               ning Scheme have already been set out. On  the

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             final  Town Planning Scheme coming into  force               under  Section  53F  of the Act  there  is  an               automatic vesting of all lands required by 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 Collec-               tor or by the Government."               It was further held:               "The  provision  under  consideration  in  the               above  decision corresponds to Section 11  and               to  Section  84 of the Act, which we  are  now               considering. Section 59 of the Nagpur Improve-               ment  Trust Act, 1936 provided that the  Trust               might, with the previous sanction of the State               Government  acquire land under the  provisions               of the Land Acquisition Act, 1894 as  modified               by the provisions of the said Act for carrying               out  any of the purposes of the said Act.  But               the provisions which are questioned before  us               are  of a different pattern  altogether.  They               deal with the preparation of a scheme for  the               development  of the land. On the final  scheme               coming  into force the lands affected  by  the               scheme which are needed for the local authori-               ty  for purposes of the  scheme  automatically               vest in the local authority. There is               623               no need to set in motion the provisions of the               Land Acquisition Act, 1894 either as it is  or               as  modified in the case of acquisition  under               Section 11 or Section 84 of the Act. Then  the               Town Planning Officer is authorised to  deter-               mine  whether  any reconstituted plot  can  be               given  to a person whose land is  affected  by               the scheme. Under Section 51(3) of the Act the               final  scheme as sanctioned by the  Government               has  the same effect as if it were enacted  in               the Act. The scheme has to be read as part  of               the  Act.  Under  Section 53 of  the  Act  all               rights  of the private owners in the  original               plots  would determine and certain  consequen-               tial  rights  in favour of  the  owners  would               arise  therefrom. If in the scheme,  reconsti-               tuted or final plots are allotted to them they               become  owners of such final plots subject  to               the rights settled by the Town Planning  Offi-               cer  in  the final scheme. In some  cases  the               original plot of an owner might completely  be               allotted  to the local authority for a               public purpose. Such private owner may be paid               compensation  or a reconstituted plot in  some               other  place. It may be a smaller or a  bigger               plot. It may be that in some cases it may  not               be  possible  to allot a final  plot  at  all.               Sections 67 to 71 of the Act provide for  cer-               tain  financial adjustments regarding  payment               of  money  to the local authority  or  to  the               owners of the original plots. The  development               and planning carried out under the Act is pri-               marily  for the benefit of public.  The  local               authority  is under an obligation to  function               according to the Act. The local authority  has               to bear a part of the expenses of development.               It  is in one sense a package deal.  The  pro-               ceedings  relating to the scheme are not  like

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             acquisition proceedings under the Land  Acqui-               sition  Act, 1894. Nor are the  provisions  of               the Land Acquisition Act, 1894 made applicable               either without or with modifications as in the               case  of  the Nagpur  Improvement  Trust  Act,               1936.  We  do not understand the  decision  in               Nagpur  Improvement Trust case as laying  down               generally that wherever land is taken away  by               the  government under a separate statute  com-               pensation should be paid under the Land Acqui-               sition  Act,  1894 only and if  there  is  any               difference  between the  compensation  payable               under  the Land Acquisition Act, 1894 and  the               compensation  payable under the  statute  con-               cerned the acquisition under the statute would               be discriminatory. That case is  distinguisha-               ble from the present case." 624     In  the instant case also the purpose and object of  the Act  being entirely different from just acquiring a  bit  of land  here or a bit of land there for some  public  purpose, and the Act being a serf-contained Code having an overriding provision in Section 42, the decision in the case of  Vithal Rao (supra) is wholly inapplicable in so far as  acquisition of surplus land under the Act is concerned.     It  was  also  urged that if one person  holds  land  in excess  of ceiling area and the excess therein  is  reserved for a public purpose under the development scheme there will still  be  discriminatory results if the land in  excess  of ceiling  is  reserved for different purposes.  According  to learned  counsel if the purpose of reservation is  construc- tion of buildings the land will be given compensation  under the  Ceiling Act whereas when the purpose of reservation  is parks,  gardens etc. compensation would be given  under  the Maharashtra Act 37 of 1966. The result, according to learned counsel, is discriminatory. This submission again has appar- ently no substance inasmuch as the provisions of the Ceiling Act  are  applicable with regard to vacant land and  if  for some fortuitous circumstances a particular category of  land does  not  fail  within the definition of  vacant  land  the provisions  with regard to vacant land can obviously not  be applied  to such land. Here again, the lands  failing  under the  two categories constitute separate classes  and  cannot consequently be treated alike.     Learned  counsel for the petitioners also  referred  .to some  other cases wherein a similar view, as in the case  of Vithal  Rao  (supra),  was taken but we do  no  consider  it necessary  to deal with those cases separately for the  rea- sons already stated above. With regard to the submission  of learned  counsel  that  the question as to  whether  a  land reserved for public purpose under the Maharashtra Act No. 37 of  1966 should be acquired under that Act or under  Section 10 of the Act has been left to the sweet will of the author- ity concerned, we are of the opinion that it is not so. Once the  land falls beyond the ceiling limit prescribed  by  the Act  and is capable of being acquired as surplus land  under Section  10 of the Act it would be wholly  inappropriate  to acquire  the same very land or a portion thereof  under  the Maharashtra  Act No. 37 of 1966 inasmuch as it  would  inter alia apparently result in misuse of public funds by granting higher  compensation when the purpose of acquisition can  be achieved  on  payment of the lesser amount  of  compensation prescribed in Section 11 of the Act.     In  the case of Parshottamdas Patel (supra),  the  State Government  of Gujarat issued a notification  under  section

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4(1) of the Land 625 Acquisition Act, 1894 stating that the lands of the respond- ents  were  likely to be needed for the  public  purpose  of providing  housing  accommodation for the employees  of  the Municipal  Corporation. Subsequently, a  notification  under Section 6 of the said Act declaring that the aforesaid lands along  with the other lands were needed for the said  public purpose,  was also made. In the meantime, the Act came  into force  and the respondents filed writ  petitions  contending inter  alia that the acquisition proceedings under the  Land Acquisition Act should be proceeded with and the acquisition proceedings  to  the extent it related to the  surplus  land under the ceiling law should be dropped. The writ  petitions were allowed. Reversing the judgment of the High Court, this Court held:                         "The  declaration made by  the  High               Court in these cases that the land acquisition               proceedings  did not suffer from an  infirmity               which indirectly suggests that the proceedings               should go on is again erroneous. It is open to               the State Government to drop the land acquisi-               tion  proceedings  and to withdraw  the  lands               from acquisition under section 48 of the  Land               Acquisition  Act, 1894. We are  informed  that               the State Government has in fact  subsequently               withdrawn  these lands from  acquisition.  The               proceedings  under the Land  Acquisition  Act,               1894 cannot therefore have any beating on  the               question  whether  the lands in  question  are               vacant lands or not for purposes of the  ceil-               ing  law contained in the Act. When the  lands               in  question or bulk of them are likely to  be               acquired  under  the  ceiling  law  by  paying               compensation as provided therein, it would not               be proper to compel the Government to  acquire               them under the provisions of the Land Acquisi-               tion-Act, 1894. As already stated the Act  has               the overriding effect on all other laws."     In  view of the foregoings discussion, we find no  merit in these writ petitions and they are accordingly  dismissed. There shall, however, be no order as to costs. G   .N.                                            Petitions dismissed. 626