ORDER
Viney Mittal, J.
1. This order shall dispose of six writ petitions being W.P. No. 701/2005, W.P. No. 1027/2005, W.P. No. 1028/2005, W.P. No. 1463/2007, W.P. No. 1464/2007 and W.P. No. 1504/2007. Whereas earlier five writ petitions raise a claim with regard to Scheme No. 136, in Writ Petition No. 1504/2007 an identical claim has been raised with regard to Scheme No. 134. For the sake of convenience, the facts are borrowed from W.P. No. 1464/2007.
2. Indore Development Authority, Indore (hereinafter referred as ‘IDA’), respondent No. 4, is a “Town and Country Development Authority” within the meaning of Section 38 of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as ‘Act’). IDA proposed a town development scheme and in terms of Section 50 of the Act, passed a resolution No. 235, dated October 8, 1993, resolving to declare its intention to prepare a scheme No. 136 in the City of Indore. A copy of the resolution passed by IDA under Section 50(1) of the Act on October 8, 1993 has been appended as Annexure P-3 with the present petition. A gazette notification issued under Section 50(2) of the Act on December 17, 1993 has been annexed as Annexure P-4.
3. It appears from the record that the petitioner Mahavir Grih Nirman Sahkari Sanstha Maryadit (hereinafter referred to as ‘petitioner-Society’), which is a residential housing co-operative society under the provisions of Madhya Pradesh Co-operative Societies Act, submitted a representation/application on December 10, 1993 to IDA requesting that since the land belonging to the petitioner-Society was sought to be included in the aforesaid development scheme, therefore, the members of the petitioner-Society be allotted the residential developed plots out of the said scheme on preferential basis. A copy of the said representation/application has been appended as Annexure P-5 with the petition. On December 28, 1993, a resolution No. 321 was passed by IDA, whereby the aforesaid request made by the petitioner-Society was favourably considered and it was decided to allot the developed plots to the members of the petitioner- Society on payment of the development cost, alongwith the land acquisition charges, besides 12% supervision charges alongwith any other charges, as per law. A copy of the resolution dated December 28, 1993 has been appended as Annexure P-6 with the present petition.
4. It further appears from the record that in terms of Section 50(3) of the Act, a draft of the aforesaid Town Development Scheme No. 136 was prepared on April 28, 1995 and published in the Government Gazette on May 26, 1995, whereby objections were also invited with respect to the said draft development scheme. A copy of the said gazette notification dated May 26, 1995 has been appended as Annexure P-7 with the present petition. Objections were filed by various land owners, including all the writ petitioners in various writ petitions. Framing of the said scheme was challenged on various technical grounds. It was claimed by the aforesaid objectors that due procedure had not been followed. However, all the aforesaid objections were rejected by IDA by passing a detailed order, dated September 2, 2002, under Section 50(4) of the Act. A copy of the order dated September 2, 2002 has been appended as Annexure P-8 with the present petition. While dealing with the objections raised by the petitioner-Society, IDA also observed that since the application/representation filed by the petitioner-Society on December 10, 1993 was premature, having been filed even before the scheme had been finalized under Section 50(4) of the Act, and therefore, even the resolution dated December 28, 1993 (Annexure P-6) passed by IDA was considered to the premature and therefore, while rejecting the objections filed by the petitioner-Society, the resolution dated December 28, 1993 was also cancelled being premature.
5. After the objections raised by various persons, including the present petitioners, were rejected by IDA, the said scheme was ordered to be published in the Government Gazette as required under Section 50(7) of the Act, vide a decision taken on March 5, 2003. The aforesaid scheme was actually published in the Government Gazette on March 28, 2003. A copy of the said notification dated March 28, 2003 has been appended as Annexure P-9 with the present petition. A perusal of the said notification Annexure P-9 reflects that the scheme was to come into force w.e.f. the date of publication in the Government Gazette. Thus, the said scheme having been published in the Government Gazette on March 28, 2003. In terms of the provisions of Section 50(7) of the Act and also as per the directions issued by IDA while issuing the final scheme, the scheme became operative w.e.f. March 28, 2003.
6. On finalization of the scheme, as noticed above, and on account of the rejection of their objections under Section 50(4) of the Act, various land owners, including the present petitioners, filed revision petitions under Section 51 of the Act, challenging the order dated September 2, 2002 (Annexure P-8), whereby their objections had been rejected and also raising a challenge to the final scheme Annexure P-9. The revision petition filed by the petitioner-Society was rejected by the Revisional Authority, respondent No. 3, vide an order dated March 29, 2004. It was held by the Revisional Authority that no irregularities had been committed by IDA in framing/finalization of the scheme and therefore, as a matter of consequence, the order Annexure P-8 passed by the IDA was also upheld. The Revisional Authority also noticed that the requisite sanction having been granted to the scheme by the State Government on November 1, 2002 only and as per gazette notification, the scheme had become operative w.e.f. March 5, 2003. However, while rejecting the revision petition filed by the petitioner-Society, it was also observed by the Revisional Authority that although the developed plots under the scheme would be allotted to the general public by IDA but there had been a policy of the IDA to allot the developed plots to the members of the society, from whom the land had been acquired, on preferential basis. It was further observed that the petitioner-Society would also be at liberty to take the benefit under the Aawas Neeti (Housing Policy). A copy of the revisional order dated March 29, 2004 passed by respondent No. 3, has been appended as Annexure P-11 with the present petition.
7. It further appears from the record that after the revision petitions filed by the land owners had been dismissed by the Revisional Authority and the scheme in question had been upheld, a communication dated September 6, 2003 was issued by IDA to the Collector, Indore to acquire the land covered under the scheme, under the provisions of Land Acquisition Act, 1894. The aforesaid communication dated September 6, 2003 has been appended as Annexure R-11 with the reply filed by IDA.
8. In pursuance to the request made by IDA, a notification under Section 4 of the Land Acquisition Act, 1894, was issued on October 17, 2003, proposing to acquire the land covered under the scheme, which included the land belonging to the writ petitioners also. Objections were invited under Section 5A of the Land Acquisition Act and were even preferred by various land owners. The said objections were rejected and a declaration under Section 6 of the Land Acquisition Act was issued on October 15, 2004. The notification under Section 4 of the Act has been appended as Annexure P-24 with the present petition, whereas the declaration under Section 6 has been annexed as Annexure P-29.
9. It is, in these circumstances that the writ petitioners have approached this Court through the present writ petitions challenging the order passed by IDA Annexure P-8, whereby objections of the land owners were rejected; notification Annexure P-9 issued under Section 50(7) of the Act; challenging the order dated March 29, 2004 (Annexure P-11) passed by the Revisional Authority; and challenging the notifications of acquisition Annexures P-24 and P-29. Additionally, a prayer has been made by the petitioner-Society that in case, the scheme in question and land acquisition proceedings are held to be legal, in such a situation, IDA be directed to comply with the Aawas Neeti and its own resolution and to extend the benefit thereof to the petitioner-Society.
10. The claim of the petitioner-Society has been contested by IDA. A detailed reply has been filed. It has been maintained that due procedure had been followed while framing and finalizing the scheme No. 136. The rejection of the objections raised by the petitioner-Society vide order dated September 2, 2002, Annexure P-8, has also been defended and even the revisional order passed by the Revisional Authority (Annexure P-11) has also been supported. The validity of the notifications of acquisition, Annexures P-24 and P-29, has also been reiterated. With regard to the alternative claim made by the petitioner-Society, it has been maintained by IDA that the aforesaid Aawas Neeti (Housing Policy) had been framed in the year 1995 and as such had come into force w.e.f. September, 1995. IDA has claimed that since scheme No. 136 was framed in the year 1993, i.e., prior to coming into force of the housing policy in the year 1995, therefore, the petitioner-Society cannot claim any benefit of the aforesaid housing policy. Additionally, the aforesaid respondent No. 4 has maintained that after proceedings for land acquisition under the provisions of Land Acquisition Act had been finalized, no benefit of any of the provisions of the Housing Policy can be claimed, in as much as, the aforesaid policy had been framed with a view to avoid the lengthy process of land acquisition.
11. At this stage, it may be noticed that besides the present writ petitions which are being taken up for joint disposal through the present order, various other land owners have also approached this Court challenging the scheme. First writ petition appears to have been filed in the year 2005. In some of the cases, this Court had issued an interim order, whereby the parties were directed to maintain status-quo regarding possession.
12. In the five writ petitions, pertaining to Scheme No. 136, separate I.As. have been filed by the writ petitioners. In W.P. No. 1464/2007, the aforesaid I.A. has been numbered as LA. No. 11025/2007. In the aforesaid application, the petitioner- Society has averred that in the main writ petition, an alternative relief has been claimed by the petitioner-Society to the effect that according to the Housing Policy and practice of IDA, 20% area out of the acquired land was to be allotted to the land owners after the development. On that basis, it has been claimed that if the petitioner-Society is allotted 20% of the developed plots in lieu of compensation then the petitioner-Society would be satisfied and would withdraw the writ petition on such allotment, thereby ending the entire dispute. In the said I.A., consequentially, directions have been sought against IDA to allot 20% of the developed plots to the society in lieu of the compensation for land acquisition payable to the petitioner-Society. It has been specifically pleaded that the compensation for the acquired land has not been withdrawn at all by the petitioner-Society. Along with the aforesaid I.A., a communication dated November 20/22, 2006 issued by the Revenue Department to the Collector, Indore has been appended. From a perusal of the aforesaid communication, it appears that a similar claim had been made by the petitioner-Society before the State Government for issuance of the directions to IDA to follow the Aawas Neeti and make requisite allotment. On the basis of the aforesaid claim, the State Government appears to have issued a communication to the Collector to follow the Aawas Neeti in case of the petitioners, as per law. Another communication dated December 20, 2006 has also been appended with the said I.A. The communication has been issued from the office of Commissioner, Indore Division, Indore and has been addressed to the Chief Executive Officer, IDA. In the aforesaid communication, directions have been issued to IDA that since a decision for acquisition for the land for the scheme No. 136 had been finalized on September 2, 2002, therefore, as per the Housing Policy the petitioner-Society was entitled to 20% of the developed plots on the basis of their acquired land, as per Para 6.6 of the said policy and IDA was directed to examine the claim of the petitioner-Society as per law.
13. Writ Petition No. 1504/2007 has been filed by the petitioners with regard to a similar claim for allotment of 20% developed plots in Scheme No. 134, without, however, raising any challenge to the scheme for acquisition proceedings.
14. I have heard Shri V.K. Jain, learned Counsel for the petitioner-Society and Shri A.S. Kutumbale, learned Senior Counsel appearing for IDA and with their assistance, have also gone through record of the case.
15. Learned Counsel for the petitioner-Society at the outset has stated that the petitioner-Society is confining its claim in the present writ petitions only to the alternative relief claimed by it in the main petition and specifically asserted in I.A. No. 11025/2007 and similar other I.As. filed in the connected matters. Shri Jain states that in view of the alternative relief claimed by the petitioner-Society, it is giving up its other challenge raised in the writ petition with regard to the irregularities in the scheme and the acquisition of the land for the said scheme.
16. Learned Counsel for the petitioner-Society, while pressing the aforesaid alternative claim, has vehemently argued that under the provisions of Section 50 of the Act, various steps were required to be followed by IDA before scheme could be taken to be finalized. Shri Jain has referred to the provisions of Section 50 of the Act to elaborate the aforesaid contention and has also pointed out to the resolution dated October 8, 1993, Annexure P-3 passed by IDA. It has been contended that the aforesaid resolution was merely a declaration of intention by, IDA to prepare a Town Development Scheme, as required under Section 50(1) of the Act and by any stretch of imagination, could not be taken to be a finally prepared scheme. Shri Jain has also referred to Sub-sections (2), (3), (4) and (7) of Section 50 of the Act to support his contention that it was only after consideration of the objections under Sub-section (4) that the draft scheme, as published under Sub-section (3), could be decided to be approved by IDA and it was only after such approval, a scheme was required to be published under Sub-section (7). Shri Jain has pointed out that it was only a finalized scheme, as published in the Government Gazette under Sub-section (7), which could be taken to have come into operation from such date as was prescribed. The learned Counsel has also referred to the notification, Annexure P-9, to point out that the said notification dated March 5, 2003 was in fact published in the Government Gazette on March 28, 2003 and therefore, when the said notification itself described that the scheme was to come into operation w.e.f. the date of its publication in the Government Gazette, then the said scheme No. 136 could only be treated to have come into operation w.e.f. March 28, 2003 and not on any earlier date. Learned Counsel has also referred to the revisional order, Annexure P-11, passed by respondent No. 3, whereby although the said revision petition filed by the petitioner- Society was dismissed by holding that there were no procedural irregularities in framing/finalizing of the scheme, but even the Revisional Authority had noticed that the requisite sanction had been granted to the scheme by the State Government only on November 1, 2002. According to the learned Counsel, although the Revisional Authority had wrongly described that the said scheme had come into operation w.e.f. March 5, 2003 but as a matter of fact, as per the decision taken by IDA, and also as per the provisions of Section 50(7) of the Act, the scheme had in fact actually come into operation w.e.f. March 28, 2003.
17. In view of the aforesaid facts, Shri Jain has maintained that the Housing Policy, concededly had been framed by the State Government in the year 1995 and even as per the respondent, IDA, the same had come into operation w.e.f. September, 1995. Shri Jain has referred to Para 6.6 of the aforesaid Housing Policy, a copy whereof has been appended as Annexure P-18 with the petition, to contend that the respondent-IDA was bound in law to give effect to the said Housing Policy and could not have rejected the claim of the petitioner-Society for allotment of 20% of the developed plots from the acquired land on the ground that the scheme had been framed in the year 1993.
18. To elaborate the aforesaid claim, the learned Counsel for the petitioner-Society has also referred to a general order dated December 1, 1995, Annexure P-19, issued by the State Government to M.P. Housing Board and to all the Development Authorities in the State, whereby in pursuance to Para 6.6 of the Housing Policy, a detailed procedure had been visualized which was required to be followed by a Development Authority, in case of framing of a development scheme. Learned Counsel maintains that at no stage, the said procedure had ever been followed by IDA and at no point of time, any option had ever been offered to the petitioner-Society, requiring it to accept 20% of the developed plots out of its acquired land or to opt for monetary compensation.
19. The aforesaid contentions have been refuted by Shri A.S. Kutumbale, learned Senior Counsel appearing for IDA. Shri Kutumbale has reiterated the stand taken by IDA in written statement and has contended that the housing policy, Annexure P-18, had been issued by the State Government in the year 1995 and could not be treated to be retrospective in nature. According to the learned Senior Counsel, since the scheme in question had been framed in the year 1993, therefore, the said housing policy issued in the year 1995 was not applicable with regard to the scheme No. 136 and as such no benefit under the said housing policy could be claimed by the petitioner-Society. Shri Kutumbale, has also argued that Para 6.6 of the housing policy and the general order dated December 1, 1995, issued by the State Government for implementation thereof, clearly envisaged that the said policy was operative only in a case where a land owner, whose land was included in a development scheme, had voluntarily agreed to hand over the possession of his land to IDA (or any other such Development Authorities), free of any compensation so that the lengthy procedure under the Land Acquisition Act was avoided but was not attracted to a situation where the procedure under the Land Acquisition Act had been resorted to and the land had been duly acquired. According to the learned Senior Counsel, after the scheme had been finalized, the land in question was duly acquired under the provisions of Land Acquisition Act, through two notifications issued under Sections 4 and 6, Annexures P-24 and P-29, respectively, and therefore, in such a situation, Para 6.6 of the Housing Policy was not attracted at all for the grant of any benefit to any land owner, such as the petitioner.
20. I have duly considered the aforesaid rival contentions raised by the learned Counsel for the parties.
The following questions arise for consideration to adjudicate the aforesaid controversy between the parties:
(i) Which is the date on which the scheme No. 136 can be said to have been finalized and become operative ?
(ii) Whether, the Housing Policy, having become operative w.e.f. September, 1995, the claim made by the petitioners for allotment of 20% of the developed plots out of their acquired land in scheme No. 136 can result in retrospective operation of the said Housing Policy ?
(iii) Whether, the IDA had followed the procedure envisaged under the general order dated December 1, 1995, Annexure P-19, issued by the State Government for implementation of the Housing Policy, in as much as, whether any notices offering the 20% plots had ever been issued and served upon the land owners after the framing of the scheme ?
(iv) If any such notices, as envisaged in the general order/circular, Annexure P-19, had never been served upon the land owners, and the land in question had been acquired under the provisions of Land Acquisition Act, still the benefit of Para 6.6 of the Housing Policy could be claimed by a land owner ?
21. At this stage, it would be relevant to extract certain relevant provisions of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 as follows:
Section 50. Preparation of town development schemes.– (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.
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(7) Immediately after the town development scheme is approved under Sub-section (4) with or without modifications the Town and Country Development Authority shall publish in the Gazette and in such other manner as may be prescribed a final town development scheme and specify the date on which it shall come into operation.
Section 51. Revision.– The Director may, at any time, but not later than two years from the date of publication of the final town development scheme, under Section 50 on his own motion or on an application filed within thirty days of such publication of the final scheme by any person aggrieved by the final scheme, call for and examine the record of any scheme for the purpose of satisfying himself as to the correctness of the order passed by the Town and Country Development Authority, or as to the regularity of any proceedings of such Authority and when, calling such record direct that the execution of the scheme be suspended. The Director may, after examining the record, pass such order as he thinks fit and his order shall be final:
Provided that no order shall be passed unless the person affected thereby and the Town and Country Development Authority have been given a reasonable opportunity of being heard.
Section 73. Power of the State Government to give directions.–
(1) In the discharge of their duties the officers appointed under Section 3 and the authorities constituted under this Act shall be bound by such directions on matters of policy as may be given to them by the State Government.
(2) If any dispute arises between the State Government and any authority, as to whether a question is or is not a question of policy, the decision of the State Government shall be final.
22. At this stage, it may also be relevant to notice Para 6.6 of the Housing Policy and the relevant portion of the General Order dated December 1, 1995 (Annexure P-19) as under:
6-6 ‘kgjks eas vkolh; fodkl gsrq Hkwfe ekfydksa] ftuesa izk;% vf/kdka’k d`”kd gksrs gS] dks vkoklh; fodkl ;kstuk esa Hkkxhnkj cukdj mudh lgefr ls Hkwfe izkIr djus ij tksj fn;k tkosxk A bl izdkj fodkl laLFkkvks dks d`”kdks dh futh Hkwfe ,d vksj lqyHkrk ls miyC/k gks ldsxh] nwljh vksj] d`”kdks dks Hkh Hkwfe ds mi;ksx ifjorZu ds QyLo:i gksus okys vkfFkZd ykHk dk mfpr fgLlk fey ldsxk A bl O;oLFkk ls Hkw&vf/kxzg.k vf/kfu;e] 1894 ds vUrxZr dh tkuh okyh yEch izfdz;k ls cpk tk ldsxk A Hkwfe ds ekfydksa] ftuls Hkwfe yh tk;sxh dks ;g fodYi fn;k tk;sxk fd os mudh Hkwfe ds ewY; ds cnys ;k rks 20 izfr’kr fodflr Hkw[k.M ys vFkok Hkw&vtZu dh tks Hkh dher fu/kkZfjr gks og dher ysa A bl laca/k esa foLr`r fu;e cuk;s tkosaxs A bl izfdz;k dks lHkh fodkl laLFkkvks ds fy, ykxw fd;k tkosxkA
Relevant extract of General Order dated December 1, 1995:
3-3 ftl futh Hkwfe dk vtZu fd;k tkuk gS mlds laca/k esa fodklk laLFkk iwjk fooj.k jktLo vf/kdkjh;ks ls izkIr djsxh] ftles Hkwfe dk [kljk dzekad] jdck] mldk okLrfod Lokeh] orZeku vf/kiR;/kkjh vkfn dk fooj.k gks A bl ckr dks lqfu’pr fd;k tk;sxk fd futh Hkwfe ds okLrfod ekfyd dks lgh tkudkjh vkSj lgh jdck vkfn ladfyr gks A
3-4 mDr tkudkjh ladfyr fd;s tkus ds ckn lacaf/kr Hkwfe ekfydks dks] fodkl laLFkk }kjk izLrkfor vkoklh; ;kstuk dk laf{kIr fooj.k nsrs gq, U;wure 15 fnuks dh iwoZ lwpuk Hksth tk;sxh] ftles ml Hkwfe ekfyd dks lacaf/kr Hkwfe dk vtZu izLrkfor gks A vftZr dh tkus okyh Hkwfe dk fooj.k vkSj uD’kk vkfn lwpuk i= ds lkFk layXu fd;k tk;sxk lwpuk izkfIr dh vfHkLohd`fr ds fnukad ls 15 fnukas dh vof/k dh x.kuk dh tkosxh] bl lwpuk i= es fuEufyf[kr ckrksa dk mYys[k jgsxk %&
3-4-1- lacaf/kr dysDVj vFkok mlds }kjk izkf/kd`r vf/kdkjh] Hkw&vtZu vf/kfu;e] 1894 ds vUrxZr fu/kkZfjr izfdz;k ds vk/kkj ij mi;qZDrkuqlkj vftZr dh tkuh okyh Hkwfe ds fu/kkZfjr ewY; dk mYys[k jgsxk A
3-4-2- fodYi ds :i esa] lwpuk i= esa ;g Hkh izLrko jgsxk fd lacaf/kr Hkwfe ds ewY; ds cnys es izLrkfor ;kstuk esa fdl vkdkj ds ds fdrus fodflr Hkw[k.M+] Hkw&Lokeh dks fodkl laLFkk }kjk miyC/k djk;s tk;sxs A
3-4-3- lwpuk i= rkehy gksus ds fnukad ls de ls de 15 fnu ds ckn dh frfFk ij fodkl laLFkk }kjk fu;r LFkku ij vk;ksftr gksus okyh cSBd dks ml frfFk ,oa le; dk Hkh mYys[k jgsxk] ftl frfFk dks lacaf/kr Hkwfe dk Lokeh ogka ,df=r gksdj] fyf[kr esa vFkok ekSf[kd :i esa fodkl laLFkk ds izLrko ij lgefr ns vFkok vlgefr ns ldsxs A
3-4-4- mi;qZDrkuqlkj lwpuk i= rkehy gksus ds ckn lwpuk i= esa fu;r fnukad ,oa le; dks cSBd vk;ksftr dh tk;sxh] ftlesa lacaf/kr Hkwfe Lokeh;ks dks vkeaf=r fd;k tk;sxk A ;fn fodkl laLFkk e/;izns’k x`g fuekZ.k e.My gS rks ml fLFkfr esa bl cSBd esa eaMy ds mik;qDr] e-iz- x`g fuekZ.k e.My ds Lrj dk vf/kdkjh vkSj vU; fodkl laLFkkvks dh fLFkfr esa ml laLFkk ds eq[; dk;Zikyu vf/kdkjh }kjk Hkwfe Lokeh ls ppkZ dh tk;sxh rFkk mudh lgefr] vlgefr ,oa fodYi ds ckjs esa muls fyf[kr esa izLrko izkIr fd;s tk;sxs A tks Hkwfe Lokeh fodkl laLFkk }kjk fn;s x;s fodYiks ls lger ugh gksrs gS] rks ,sls Hkwfe Lokeh;ks dks Hkwfe vf/kxzg.k dh dkjZokbZ fodkl laLFkk] dysDVj ds ek/;e ls djk ldsxh A tks Hkwfe Lokeh fodkl laLFkk }kjk fn;s x;s fodYiks es ls dksbZ ,d fodYi pqudj Hkwfe nsus dks rS;kj gksrs gS] rks ,slh Hkwfe] fodkl laLFkk lacaf/kr Hkwfe Lokeh ls vuqcaf/kr ‘krksZ ds v/khu izkIr dj ldsxh A ;fn lacaf/kr Hkwfe Lokeh eqvkots ds :i es udn jkf’k ysuk pkgrk gS rks] ,slh jkf’k ds Hkqxrku ds ckn fodkl laLFkk Hkwfe dk vf/kiR; ys ldsxh ;fn Hkwfe Lokeh ;kfu Hkwfe ds cnys esa fodflr Hkw[k.M+ pkgrk gS] rks ml laca/k es fodkl laLFkk vkSj lacaf/kr Hkwfe Lokeh ds chp rnk’k; dk ,d vuqca/k lEiUu gksxk vkSj mlds ckn fodkl laLFkk dk vf/kiR; ys ldsxh A ;g fLFkfr Hkh gks ldrh gS fd dksbZ Hkwfe Lokeh ;kfu Hkwfe ds ,d fgLls ds fy, uxn eqvkotk ys vkSj ‘ks”k fgLls ds fy, fodflr Hkw[k.M+ ekaxs] vxj ,slk izLrko vkrk gS] rks mls Hkh fodkl laLFkk Lohdkj dj ldsxh A
23. From the perusal of the provisions of Section 50 of the Act, it is apparent that once a town development scheme, an envisaged under Section 49 of the Act, is proposed by a Town and Country Development Authority (such as IDA), then in terms of Sub-section (1), the said authority has to declare its intention to prepare a town development scheme. Under Sub-section (2), not later than 30 days from the date of such declaration of intention, the said declaration has to be published in the Government Gazette and in such other manner as may be prescribed. After publication of the declaration under Sub-section (2), under the provisions of Sub-section (3), the said Authority has to prepare a draft of the town development scheme and publish the same and invite objections/suggestions. The objections/suggestions received by such an Authority would require to be considered in terms of Sub-section (4), after giving a reasonable opportunity to such persons, who may desire to be heard, and thereafter to take a decision to approve the draft scheme, either as originally framed or with such modifications as may be deemed fit. Under Sub-section (7), after the draft scheme is approved, under Sub-section (4), with or without modifications, the said Authority is required to publish in the gazette and in such other manner, as may be prescribed, a final town development scheme and is also required to specify the date on which the scheme is to come into operation.
24. It is thus, clear that unless and until, the objections received against the draft scheme have been considered and adjudicated by a Development Authority and the draft scheme, as originally prepared or modified, is ordered to be published under Sub-section (7), the scheme cannot be treated to have been finalized. However, even such a final scheme can only become operative from a date which is so specified by the Development Authority.
25. In the present case, a declaration of intention was resolved through resolution No. 235 passed on October 8, 1993, when Scheme No. 136 was proposed by IDA. The said resolution was in fact, in conformity with the requirements of Section 50(1) of the Act. A gazette notification, in terms of Section 50(2) followed on December 17, 1993 (Annexure P-4). The draft scheme was prepared on April 20, 1995 and was published in the Government Gazette on May 26, 1995, in terms of Section 50(3) (Annexure P-7). Objections were invited from various persons. Such objections were filed. The objections raised by various persons, including present petitioners, were adjudicated by IDA and were rejected vide order dated September 2, 2002 (Annexure P-8). The said decision taken by IDA was in terms of Section 50(4) of the Act. After finalization of the draft scheme, the final scheme was issued on March 5, 2003 and was published in the Government Gazette on March 28, 2003, (Annexure P-9). In the said notification, it was specifically stipulated that the scheme would come into operation w.e.f. the date of its publication in the gazette. In these circumstances, there cannot be any dispute raised by IDA that before publication of the scheme No. 136 in the official gazette on March 28, 2003, the said scheme had not come into existence nor could be treated to be operative. The argument raised on behalf of the IDA that the scheme in question had been framed in the year 1993 is factually incorrect and even legally unsustainable Thus, point (i) has to be answered in favour of the petitioner-Society and against IDA. For all practical purposes, the scheme in question could be treated to have come into existence only on March 28, 2003.
26. Once, it is inferred that the scheme in question had come into operation w.e.f. March 28, 2003 and not on any date prior thereto, then obviously, it cannot be suggested on behalf of IDA that the claim made by the petitioner-Society, based upon the Housing Policy issued in September, 1995, would actually result in giving the said Housing Policy a retrospective operation. In my considered view, the aforesaid plea raised by IDA is in fact based upon a misinterpretation of provisions of Section 50 of the Act. It has been conceded by IDA itself in its return that the aforesaid Housing Policy had come into operation w.e.f. September, 1995, therefore, when scheme No. 136 had itself come into existence and become operative w.e.f. March 28, 2003, then by any stretch of imagination, it cannot be suggested that to grant requisite benefit of the said Housing Policy to the petitioner-Society would in any manner mean giving a retrospective operation to the said Housing Policy. In my considered view, the aforesaid plea has been raised by IDA, in its reply, on the basis of a fallacious assumption. The aforesaid assumption raised by IDA cannot be subscribed to by this Court. Thus, even point (ii) has to be answered in favour of the writ petitioners.
27. At this stage, it may also be noticed that during the course of arguments, the learned Counsel for IDA has placed reliance upon a communication dated August 14, 1996, whereby the State Government has clarified that Para 6.6 of the Housing Policy was only applicable to such matters, which had arisen after issuing of the said Housing Policy in September, 1995 and had no application to the matters which had arisen prior to that date. The petitioner-Society’s claim in the present petition does not have any quarrel with the said directions issued by the State Government. However, in view of the conclusion drawn above that the scheme itself had been finalized in the year 2003, the said clarification has no application.
28. Before adverting to point (iii), there are certain more facts which require to be noticed, with regard to the point (ii). Against the rejection of the objections by IDA, the petitioner-Society had approached the Revisional Authority by filing a revision petition. It had also challenged the issuance of the final scheme under Section 50(7) of the Act. The Revisional Authority, while exercising its revisional powers, under Section 51 of the Act, rejected the claim made by the land owners that due procedure had not been followed while framing and finalizing the scheme. However, the Revisional Authority in Para 6 of the revisional order dated March 29, 2004, Annexure P-11, has itself observed that after the development of the land, the developed plots are to be allotted to general public but there has been a policy of IDA to allot the developed plots to the members of the society on preferential basis. It has also been observed that the petitioner-Society would be free to take benefit under Housing Policy. It was also observed by the Revisional Authority that the requisite sanction had been granted by the State Government to Scheme No. 136 on November 1, 2002 and the scheme was to come into operation w.e.f. March 5, 2003 and implementation was to commence within a period of two years from the aforesaid date and was to be completed within a period of five years. It is not in dispute that the order passed by the Revisional Authority has not been challenged by IDA in any manner and in terms of Section 51 of the Act, the order passed by the Revisional Authority is to be treated as final. In these circumstances, in view of the specific observations made by the Revisional Authority, and also in view of the specific liberty granted to the petitioner-Society to avail of the benefit of Housing Policy, it is not open to IDA at this stage to contend that the benefit of Para 6.6 of the Housing Policy was not available to the petitioner-Society with regard to the Scheme No. 136. As a matter of fact, the aforesaid controversy has almost been concluded by the Revisional Authority while passing the revisional order. After the publication of the final scheme on March 28, 2003, IDA itself issued a communication to the Collector, Indore, on September 6, 2003, (Annexure R-11), requiring the acquisition of the land for the said scheme under the provisions of Land Acquisition Act, 1894. A notification under Section 4 of the Land Acquisition Act was issued on October 17, 2003 (Annexure P-24) and a declaration under Section 6 of the said Act was issued on October 15, 2004 (Annexure P-29). Thus, when the acquisition in question of the land of the land owners had been finalized on October 15, 2004, then it cannot be suggested at all by IDA that Para 6.6 of the Housing Policy, which had been issued in the year 1995, was not applicable to the claim of the petitioners.
29. The aforesaid additional facts, noticed above, also support the inference drawn by this Court with regard to the conclusion of point (ii) in favour of the land owners.
30. The next question which arises for determination before this Court is as to whether the land having been acquired under the provisions of Land Acquisition Act, the benefit of Para 6.6 was still available to a land owner. It has been argued on behalf of IDA that Para 6.6 of the Housing Policy and the general order issued by the State Government on December 1, 1995 (Annexure P-19) had clearly envisaged that the aforesaid concession under the policy was to be made available to a land owner only with a view to avoid the lengthy procedure of land acquisition, but in a case where the said procedure had in fact been resorted to, the Housing Policy was not relevant. In my considered view, even the aforesaid argument raised on behalf of IDA cannot be accepted by this Court.
31. Para 6.6 of the Housing Policy has already been reproduced above. A perusal of the said paragraph clearly reflects that intention of the State in framing the said policy was not only with a view to avoid the lengthy procedure/ disputes qua the land acquisition, but the aforesaid policy had been framed as a welfare measure to allow the participation of the land owners in housing development schemes. It was keeping in view the interest of the aforesaid land owners that the State Government had directed to offer an option to a land owner that could opt for 20% of the developed plots out of his acquired land or in alternative could ask for monetary compensation. The aforesaid intention of the State Government is further reflected, when for the implementation of the aforesaid Housing Policy, a General order dated December 1, 1995, Annexure P-19, was issued by the State Government to all the concerned Authorities, including the Housing Board etc. A detailed procedure was envisaged. A perusal of General Order dated December 1, 1995, Annexure P-19 (also reproduced above) shows that in case some land was proposed to be acquired for a development scheme then a written notice, at least of 15 days was required to be issued to a land owner, intimating him the details of the land which were proposed to be acquired along with the maps etc. and also indicating the monetary compensation, which he was likely to get under the provisions of Land Acquisition Act and requiring the land owner to exercise his option, either to accept the aforesaid monetary compensation or to accept developed plots, the details whereof, including the number of plots and area of the developed plots etc. were also required to be mentioned in the said notice. A hearing was to be fixed of all such land owners and it was in the aforesaid hearing/meeting that a land owner was required to exercise his option. No material, whatsoever, has been brought before the Court to show that such a procedure had ever been followed by IDA, as directed by the State Government, vide General Order dated December 1, 1995, Annexure P-19. If no such option had ever been offered to the land owners, including the petitioner-Society, then the question, that no request had been made by the land owners, including petitioner-Society, to take benefit of Para 6.6 of the Housing Policy, before the land had been acquired under the provisions of Land Acquisition Act, cannot obviously arise. The General Order, Annexure P-19, in fact, reflects the Doctrine of Election, when two options were to be offered to a land owner. Both the aforesaid options were required to be definite and precise. The monetary compensation, which a land owner was likely to get was required to be indicated in a notice issued to the land owner. As an alternative, the said notice was to contain an offer for the developed plots, including number of plots, area of plots etc. If the aforesaid offer had not been made, then obviously, the election (option) could not be exercised by the land owner. A valid and precise offer of option is the pre-requisite for invoking the Doctrine of Election. Since there is no material available before the Court that such an offer/option had ever been put by IDA to the land owners, therefore, to draw an adverse inference against the landowners for their non-exercise of option would be wholly too much and contrary to all the norms of Equity, Good Conscious and Fair Play.
32. In view of the aforesaid conclusion, points (iii) and (iv) have also to be jointly answered in favour of the petitioner-Society.
33. Although, there is no dispute with regard to the binding nature of the Housing Policy, Annexure P-18 and the General Order, Annexure P-19, issued by the State Government, it would be relevant to advert to the provisions of Section 73 of the Act, which have already been reproduced above. Under Section 73 of the Act, the Stale Government has powers to issue directions on matters of policy to the Authorities and the Officers appointed under Section 3 of the Act. Such directions being binding, have to be carried out in letter and spirit by the Development Authorities/Officers under the Act. The Housing Policy, Annexure P-18, including Para 6.6 thereof, and the General Order dated December 1, 1995, Annexure P-19, are such policy decisions, which had been taken by the State Government and directions issued to various Development Authorities in the State and the Director, appointed under Section 3 of the Act, to carry out the said policy decisions. Thus, it is not open to IDA to question the said policy decision, nor such a suggestion has even been made on behalf of IDA. In these circumstances, when the aforesaid Housing Policy and the General Order are binding upon IDA, then there is no escape for it except to implement those in letter and spirit.
34. At this stage, it may be noticed that a vain attempt has been made by IDA to challenge the ownership of the petitioner-Society. It has been claimed that there is no proof of ownership of the acquired land furnished by the petitioner- Society and the land in question, at the time of acquisition of land was not owned by it. On that basis, it has been maintained that the petitioner-Society cannot claim the allotment of 20% of land out of its acquired land.
35. Although, I find that no such stand was taken by IDA, when it dealt with the objections filed by the petitioner- Society, while passing Annexure P-8, dated September 2, 2002, nor any objections were ever raised before the Revisional Authority, when even the revision petition filed by the petitioner-Society was entertained and adjudicated on merits, still, since the aforesaid question is a question of fact, it would be appropriate to direct the petitioner-Society to furnish the requisite title documents before the IDA showing its ownership of the acquired land or furnish such other documents/ authority from the recorded land owners, which may authorize the petitioner-Society to raise the claim for allotment of the developed plots, for and on behalf of the recorded owners.
36. Before parting with this order, it would not be out of place to take a judicial notice of certain unfortunate incidents which had happened in some other States of the country. The acquisition of the land for industrialization and for such other purposes had given rise to a serious unrest in certain parts of the country. Almost a uniform protest is being raised by the land owners all over the country against compulsory acquisition and it is being complained that their valuable land is being taken away, depriving them of their all resources of livelihood and subsistence and without offering them any right to participate in the development projects. Land acquisition may not have been the real cause of the ugly situation that had developed in certain parts of the country. However, what the aforesaid tragic incidents highlight is a set of contentious issues that can flare-up whenever the acquisition of farm land for industry and infrastructure, with the State exercising its eminent domain, comes on the agenda. A greater commitment to transparency would always help. What makes land acquisition a prescription for trouble is, first, the element of compulsion that comes with the exercise of eminent domain by the State, and, secondly, flawed system of paying compensation for farm land. Clearly the policy relating to land acquisition for Special Economic Zones and other industrial, developmental and infrastructural projects needs to be given a deeper thought. In my considered view, the Housing Policy, framed by the State Government of Madhya Pradesh in the year 1995, was in fact a step in right direction and had clearly envisaged the hardships of the land owners. In these circumstances, all instrumentalities of the State, including IDA, should only submit to the said welfare measure adopted by the State Government.
37. In view of the aforesaid discussion, the present petitions are allowed. The IDA, respondent No. 4 is directed to allot 20% of the developed plots as per Housing Policy of 1995, to the petitioner-Society, out of the acquired land, in the scheme in question. On allotment of the said developed plots, the rest of 75% of the acquired land shall vest in IDA free of any charges/ compensation and the land owner/s shall have no claim/title qua the aforesaid remaining land. Since the remaining challenge by the petitioner-Society has been specifically given up while filing I.A. No. 11025/2007, the writ petition qua remaining challenge raised by the petitioner-Society is disposed of as not pressed. The requisite process for allotment of the developed plots shall completed by IDA within a period of three months from the date of a certified copy of this order is received.
38. C.C. as per rules.