ORDER
A.K. Patnaik, C.J.
1. This is an appeal against the order dated 17-5-2006 of the learned single Judge under Article 226 of the Constitution in Writ Petition No. 4 of 2005 and raises substantial questions of law relating to interpretation of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short ‘the Adhiniyam’).
2. The facts briefly are that the appellant purchased on 4-8-1986 an agricultural land bearing Khasra No. 67/8/2 in village Bicholi Hapsi in District Indore and submitted a plan for construction for purposes of residence on the land to the Gram Panchayat of Bicholi Hapsi. By order dated 5-4-1990, the Gram Panchayat approved the appellant’s plan and the appellant commenced construction on the land. Village Bicholi Hapsi was not amongst the 37 villages included in the plan area of Indore as notified by notification dated 13-2-1974 of the State Government under Section 13(1) of the Adhiniyam. On 30-3-1999, the Stale Government issued a notification under Section 75(1) of the Adhiniyam, delegating its powers under Section 13 of the Adhiniyam to define the plan area to the Zila Yojna Samiti, Indore with effect from 1-4-1999 and on 25-11-2000, the Zila Yojna Samiti, Indore issued a notification enlarging the plan area to additional 115 villages including village Bicholi Hapsi. On 28-6-2002, however, the Zila Yojna Samiti excluded 62 villages from the plan area but village Bicholi Hapsi continued to be in the plan area. In April 2003, a draft Master Plan 2011 called the Indore Development Plan, was prepared for the enlarged plan area including village Bicholi Hapsi. Thereafter, on 24-8-2004, the Indore Development Authority published a Draft Scheme No. 164 under Section 50(2) of the Adhiniyam which covered village Bicholi Hapsi. Since the land of the appellant in village Bicholi Hapsi was covered by the Draft Scheme No. 164, the appellant applied to the Joint Director of Town and Country Planning, Indore for sanction of lay out plan for the purpose of development under Section 21(1) of the Adhiniyam mentioning therein that the plan was earlier sanctioned in the year 1991 by the Gram Panchayat, Bicholi Hapsi. The Joint Director, Town and Country Planning, Indore informed the appellant that he cannot approve the plan for construction of the house because of the publication of the Draft Scheme No. 164 under Section 50(2) of the Adhiniyam. The appellant filed Writ Petition No. 4 of 2005 challenging the notification of the Indore Development Authority dated 24-8-2004 publishing the Draft Scheme No. 164 but by the impugned order, the learned single Judge dismissed the writ petition.
3. Mr. P.P. Rao, learned Counsel for the appellant submitted that Section 2(u) of the Adhiniyam defines ‘Town Development Scheme’ to mean a scheme prepared for the implementation of the provisions of a development plan by the Town and Country Development Authority. He submitted that Section 17 of the Adhiniyam describes the contents of the development plan. He referred to the provisions of Sections 14 and 18 of the Adhiniyam to show how a draft development is prepared by the Director. He submitted that finally the draft development plan has to be approved by the State Government and published by the State Government in the Gazette under Section 19 of the Adhiniyam. He submitted that Sub-section (5) of Section 19 of the Adhiniyam provides that the development plan comes into operation from the date of publication of the development plan in the gazette and from such date the development plan becomes binding on all development authorities constituted under the Adhiniyam and all local authorities functioning within the plan area. He argued that all these provisions of the Adhiniyam would show that until a development plan is prepared, finalized and published by the State Government, the Town and Country Development Authority cannot prepare and publish a town development scheme under Section 50 of the Adhiniyam. He submitted that the Indore Development Plan 1991 did not cover village Bicholi Hapsi and thereafter the Indore Development Plan 2011 was made but was abandoned. He submitted that the Indore Development Plan 2021 for a larger plan area includes the village Bicholi Hapsi but the Indore Development Plan 2021 is yet to be approved by the State Government and published under Section 19 of the Adhiniyam and, therefore, has not come into operation. He submitted that since village Bicholi Hapsi is not yet covered in the Development Plan, Scheme No. 164 covering the village Bicholi Hapsi published by the Indore Development Authority under Section 50(2) of the Adhiniyam by notification dated 24-8-2004 is illegal and is liable to be quashed.
4. Mr. Rao next submitted that pursuant to the directions of this Court in the order dated 14-7-1998 in W.P. No. 1012 of 1995 filed by the Indore Consumers Society against the Indore Development Authority, the State Government has framed some guidelines with regard to preparation of draft schemes in the letter dated 18-11-1999 of the Government of Madhya Pradesh and as per the aforesaid guidelines, the Development Authorities are required to obtain written permission of the administrative department concerned of the Government before publication of the Draft Town Development Scheme under Section 50 of the Adhiniyam. He submitted that these guidelines are directions of the State Government and are binding on the officers of the Indore Development Authority as provided in Section 73 of the Adhiniyam. He submitted that despite these directions, no approval has been taken from the State Government before publishing Draft Scheme No. 164 under Section 50(2) of the Adhiniyam and hence the Draft Scheme No. 164 published by notification dated 24-8-2004 is invalid and is liable to be quashed. He submitted that if the appellant succeeds on the two grounds that the notification dated 24-8-2004 by the Indore Development Authority publishing Draft Scheme No. 164 is illegal because the development plan which includes village Bicholi Hapsi has not been sanctioned and published by the State Government, and the Draft Scheme No. 164 has not been approved by the State Government before its publication in accordance with the guidelines in the letter dated 18-11-1999, the appellant will not press the other grounds raised in the appeal.
5. In reply Mr. R.N. Singh, learned Advocate General submitted that the definition of Town Development Scheme’ in Section 2(u) of the Adhiniyam would show that a Town Development Scheme also includes ‘Scheme’ and, therefore, a Town Development Scheme need not be for implementation of the provisions of a development plan. According to Mr. Singh, the contention of the appellant that until a development plan is sanctioned and published by the State Government under Section 19 of the Adhiniyam, a Town Development Scheme cannot be prepared and published by the Town and Country Development Authority under Section 50 of the Adhiniyam, is thus misconceived. In support of this submission, Mr. Singh relied on a judgment dated 23-11-2006 of a Division Bench in W.A. No. 433 of 2006 Radheshyam and Ors. v. State of M.P. and Ors. He also referred to the provisions of Sub-section (2) of Section 38 of the Adhiniyam to show that the duty of preparing one or more town development schemes and acquisition and development for the purpose of expansion or improvement of the area of the Authority is vested in the Town and Country Development Authority and submitted that this duty of the Town and Country Development Authority is apart from its duty of implementing a proposal in the development plan. He referred to the minutes of the meeting of high officials of the Madhya Pradesh Government in which an opinion has been expressed that under the provisions of Section 38(2) of the Adhiniyam, the Town and Development Authority is competent to declare a scheme and develop the invested area/sphere.
6. Mr. Shekhar Bhargava, learned Counsel appearing for the Indore Development Authority cited decisions of the Supreme Court in Commissioner of Income Tax, A.P. v. Taj Mahal Hotel Secunderabad , Mahalakshmi Oil Mills v. State of Andhra Pradesh AIR 1989 SC 335 and Black Diamond Beverages and Anr. v. Commercial Tax Officer, Calcutta and Ors. and contended that the definition of Town Development Scheme in Section 2(u) of the Adhiniyam will include a scheme other than a scheme for implementing a proposal in the development plan. In reply to the contention of Mr. Rao that the approval of the State Government has not been taken by the Indore Development Authority before publishing the Draft Scheme No. 164 under Section 50(2) of the Adhiniyam as per the directions of the State Government in the letter dated 18-11-1999, he cited the ratio of the Supreme Court in State of Assam v. Ajit Kumar Sarma and Ors. and submitted that such directions cannot be enforced by the Court. He referred to the provisions of Section 18 of the Adhiniyam to show that the Adhiniyam contemplates a draft development plan before the same is finalized, approved and published by the State Government under Section 19 of the Adhiniyam. He argued that since the Indore Draft Development Plan 2011 for enlarged plan area including village Bicholi Hapsi was notified in July 2006, the Draft Scheme No. 164 could be notified by the Indore Development Authority on 24-8-2004.
7. Mr. Satish Bagadiya, learned Counsel appearing for the appellant submitted in rejoinder that in Writ Appeal No. 433 of 2006, the question whether a town development scheme can be formulated before a development plan is finalized, approved and published by the State Government under Section 19 of the Adhiniyam did not arise for decision and the Division Bench did not apply its mind to this question and, therefore, the judgment of the Division Bench of this Court in Writ Appeal No. 433 of 2006 is not a binding precedent on this question. He cited the decisions of the Supreme Court in State of U.P. and Anr. v. Synthetic and Chemicals Limited and Anr. , Deb Narayan Shyam and Ors. v. State of West Bengal and Ors. 2005 AIR SCW 172 and in Uttaranchal Road Transport Corporation v. Mansaram Nainwal in support of his contention that a decision of a Court on a point which was not in issue before the Court does not constitute a binding precedent.
8. Mr. Bagadiya further submitted that a development plan cannot include a draft development plan because as provided in Section 19(5) of the Adhiniyam, a development plan comes into operation only from the date a publication of the development plan under Section 19(4) of the Adhiniyam by the State Government. He submitted that Section 25(1) of the Adhiniyam further provides that after coming into force of the development plan, the use and development of land shall conform to the provisions of the development plan land and Section 26 of the Adhiniyam provides that after coming into operation of the development plan, no person shall change the use of any land or carry out development of the land without the permission of the Director. He submitted that it will thus be clear that until a draft development plan is finalized, sanctioned and finally published by the State Government under Section 19 of the Adhiniyam, it is not a development plan and it does not have the legal consequences of Sections 25 and 26 of the Adhiniyam. He also referred to Section 36 of the Adhiniyam which provides for penalty for unauthorized development or use other than in conformity with the development plan. He submitted that at any point of time, there can be one development plan which is enforceable under the provisions of the Adhiniyam and if the development plan is to include a draft development plan also, then the development plan of 1991, the draft development plan 2011 or draft development plan of 2021 will be simultaneously enforceable under the Adhiniyam and this can never be intention of the Legislature. He cited the decision of the Supreme Court in T. Vijayalakshmi and Ors. v. Town Planning Member and Anr. AIR SCW 5375 and submitted that the right of the appellant to construct the building on his land in village Bicholi Hapsi could be regulated only if a development plan was made for the enlarged plan area including village Bicholi Hapsi. He argued that since the development plan 1991 which is still in force was for the plan area which did not include village Bicholi Hapsi, the Draft Scheme No. 164 published by the Town Development Authority under Section 50(2) of the Adhiniyam for village Bicholi Hapsi is liable to be quashed.
9. Considering the contentions raised by the learned Counsel for the parties, the first question which we have to decide in this case is whether the opinion of the Division Bench of this Court in W.A. No. 433 of 2006 Radhey Shyam and Ors. v. State of M.P. and Ors. on the point that a town development scheme may be made by Town and Country Planning Authority for any area even without a development plan for the area is a binding precedent, which this Division Bench has to follow. For ensuring judicial discipline and stability and uniformity of law, a Division Bench of a High Court should not deviate from a decision on a point of law, but in State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr. (supra), the Supreme Court observed:
… Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.
The Supreme Court made the aforesaid observations after referring to Lancaster Motor Co. (London) Ltd. v. Bremith Limited (1941) 1 KB 675 : (1941) 2 All ER 11 in which the Court did not feel bound by an earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority. The Supreme Court also referred to the observations of the Bench in Municipal Corporation of Delhi v. Gurnam Kaur that ‘precedents sub-silentio and without argument are of no moment’.
10. In Uttaranchal Road Transport Corporation and Ors. v. Mansaram Nainwal (supra), the Supreme Court has further held in paragraph 13 that ‘a case is a precedent and binding for what it explicitly decides and no more’ and has referred to the observations of Earl of Halsbury LC in Quinn v. Leathem (1901) AC 495 (HL) that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generally of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.
11. Keeping in mind the aforesaid authorities on the law of precedents, we may now consider whether the opinion expressed by the Division Bench in the judgment in W.A. No. 433 of 2006 dated 23-11-2006 that a town development scheme embraces also a scheme which does not implement the provisions of a development plan constitutes a binding precedent to be followed by us. In Writ Appeal No. 433 of 2006, the order that was challenged was the order passed by the Commissioner as a delegate of the State Government dispensing with enquiry under Section 5A of the Land Acquisition Act, 1894 for the purposes of acquiring land for implementation of Scheme No. 140 of the Indore Development Authority. This will be clear from paragraphs 2 and 3 of the judgment and order dated 23-11 -2006 of the Division Bench in Writ Appeal No. 433 of 2006, which are extracted herein below:
2. Though the record of each appeal is quite voluminous, on account of the able assistance of the Counsel for the parties, it appears that basically the appellants have challenged the order of the respondents in so far as it dispenses with the enquiry under Section 5A of the Land Acquisition Act while applying the provisions of Section 17(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’).
3. The acquisition has been made for implementation of Scheme No. 140 of the Indore Development Authority. Though the appeals also challenge the validity of the Scheme, before us, the matter was confined to assail the proceedings of acquisition. In particular, the power exercised by the State Government (Commissioner as the delegate of the State Government) in exercise of Section 17(4) to dispense with the summary enquiry under Section 5A of the Act, has been assailed.
Thus, the framing and the publication of the Scheme No. 140 of the Indore Development Authority was not in challenge before the Court. Nonetheless, the Division Bench referred in paragraph 4 of its judgment in Writ Appeal No. 443 of 2006 to Sections 38 and 49 of the Adhiniyam and expressed the opinion in paragraph 5 of the judgment that under Sections 38 and 49 of the Adhiniyam, implementation of the provisions made in the Master Plan (Development Plan) is only one of the functions and that besides the aforesaid function, a Town & Development Authority also has the function of acquiring and developing land for the purpose of expansion and improvement and therefore, a town development scheme can be made not only for implementation of a Master Plan (Development Plan) but also for the purpose of town expansion. With great respect, we may say that expression of any opinion on this point was not at all necessary for the purpose of deciding the challenge before the Division Bench in W.A. No. 433 of 2006 to the order passed by the Commissioner as a delegate of the State Government under Section 5A and Section 17(4) of the Land Acquisition Act, 1894 dispensing with summary enquiry before acquisition of the land because it was not logically necessary to decide this point for deciding whether the enquiry under Section 5A of the Land Acquisition Act, 1894 could be dispensed and Section 17 of the said Act could be invoked. Moreover, a reading of the entire judgment of the Division Bench dated 23-11-2006 in W.A. No. 433 of 2006 would show that the point whether a town development scheme can be made for an area without the development plan for the area has not been argued before the Division Bench nor considered by the Division Bench in W.A. No. 433 of 2006 by reference to the different relevant provisions of the Adhiniyam. For these reasons, we hold that the opinion expressed by the Division Bench in the judgment in W.A. No. 433 of 2006 that a town development scheme for an area can be framed without a development plan for the area for expansion of town area is sub-silentio and is not a binding precedent. As has been explained by Salmond on Jurisprudence (12th Edition) by Prof. P.J. Fitzgerald quoted in paragraph 15 of the judgment in Deb Narayan Shyam and Ors. v. State of West Bengal and Ors. 2005 AIR SCW 172 at page 191:
A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub-silentio.
12. We may now turn to the main question to be decided in this Writ Appeal, whether a town development scheme for an area can be framed by the Town and Country Development Authority without the area being included in the development plan. In Section 2(u) of the Adhiniyam, it is stated that-
unless the context otherwise requires ‘town development scheme’ means a scheme prepared for implementation of the provisions of a development plan by the Town and Country Development Authority and includes ‘scheme’.
Once it is said by the Legislature that under the Adhiniyam unless the context otherwise requires, a town development scheme means a scheme prepared for the implementation of the provisions of a development plan by the Town & Country Development Authority, wherever the expression ‘town development scheme’ occurs in the Adhiniyam, the Court will have to construe the expression to mean a scheme prepared for implementation of the provisions of a development plan by the Town & Country Development Authority. In Section 2(u) of the Adhiniyam extracted above, it is however stated that town development scheme includes ‘scheme’. This would mean that in Sections 50, 51, 53, 54, 56, 57 and other provisions of the Adhiniyam, the word ‘scheme’ would mean ‘town development scheme’. Obviously, the Legislature could not have intended to say on the one hand that town development scheme means a scheme for preparation and improvement of a development plan by the Town and Country Development Authority and say, on the other hand, that town development scheme also means a scheme prepared by the Town and Country Development Authority, not for implementation of the development plan but for expansion or improvement of the town area.
13. In The Commissioner of Income-tax, Andhra Pradesh v. Taj Mahal Hotel (supra), cited by Mr. Bhargava, the interpretation of the word ‘plant’ in Section 10(5) of the Income Tax Act, 1961 was considered by the Supreme Court. Section 10(5) provided inter-alia that in Sub-section (2) of Section 10 ‘plant’ includes vehicles, books, scientific apparatus and surgical equipment purchased for the purpose of the business, profession or vocation. In this case, therefore, the definition of ‘plant’ was not exhaustive but inclusive. The definition did not say what the word ‘plant’ means and what it includes. In the present case, on the other hand, as we find, the definition of ‘town development scheme’ in Section 2(u) of the Adhiniyam is exhaustive inasmuch as the definition not only says what it means but also says what it includes.
14. In Mahalakshmi Oil Mills v. State of Andhra Pradesh (supra), cited by Mr. Bharagava, the definition of the word ‘tobacco’ in item No. 4 of the First Schedule of the Central Excise & Salt Act, 1944, which is adopted in Andhra Pradesh General Sales Tax Act, arose for interpretation. The definition reads thus:
‘tobacco’ means any form of tobacco, whether cured or uncured and whether manufactured or not and includes the leafs, stalks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth.
In paragraphs 12 and 13 of the judgment as reported in AIR 1989 SC 335 at page 339, the Supreme Court held:
12-13. Looking, therefore, at the terms of the definition more closely, it is quite clear that tobacco seeds do not fall within the second or inclusive part of the definition. This part of the definition is important. It specifically excludes from the definition any part of the tobacco plant so long as it is still attached to the earth. It makes mention only of parts of the plant after it is severed from the earth. It is common knowledge that when a plant is severed from the earth, its parts will comprise of not only the leaves, stalks and stems but also the seeds. Yet the inclusive part of the definition enumerates only the leaves, stalks and stems and, deliberately one should think, avoids mention of seeds.
Thus, in this case, the Supreme Court took into consideration the second inclusive part of the definition of ‘tobacco’ to hold that ‘tobacco’ would mean tobacco seeds, which are part of the tobacco plant still attached to the earth and mention of which was deliberately avoided in the inclusive part of the definition of tobacco. This decision of the Supreme Court does not hold that the second inclusive part of the definition should be read inconsistent with the first part of the definition.
15. In Black Diamond Beverages v. Commercial Tax Officer, Calcutta (supra), cited by Mr. Bhargava, the definition of ‘sale price’ in Section 2(d) of the West Bengal Sales Tax Act used the words ‘means’ and ‘includes’ and the Supreme Court held in paragraph 7 of the judgment as :
7. It is clear that the definition of ‘sale price’ in Section 2(d) uses the words ‘means’ and ‘includes. The first part of the definition defines the meaning of the word ‘sale price’ and must, in our view, be given its ordinary, popular or natural meaning. The interpretation thereof is in no way controlled or affected by the second part which ‘includes’ certain other things in the definition. This is a well-settled principle of construction. Craies on Statute Law (7th Edn. 1.214) says:
An interpretation clause which extends the meaning of a word does not take away its ordinary meaning… Lord Selborne said in Robinson v. Barton Eccles Local Board (1883) 8 App Case 798 (801) : An interpretation clause of this kind is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable, but to enable the word as used in the Act… to be applied to something to which it would not ordinarily be applicable.
Therefore, the inclusive part of the definition cannot prevent the main provision from receiving its natural meaning.
In the aforesaid case, the Supreme Court has clearly held relying on Craies on Statute Law (7th Edn.) that the inclusive part of the definition cannot prevent the main provision from receiving its natural meaning. It is true that sometimes the inclusive part of the definition may extend the meaning of the word so as to apply to something to which it could not be ordinarily applied, as mentioned in Craies on Statute Law, quoted in the aforesaid decision, but as we shall see on interpretation of other relevant provisions of the Adhiniyam that the word ‘scheme’ in the inclusive part of the definition of ‘Town Development Scheme’ in Section 2(u) of the Adhiniyam can only mean a scheme prepared to implement the proposals in a development plan.
16. Sub-section (2) of Section 38 of the Adhiniyam, on which great reliance was placed by the learned Advocate General Mr. R.N. Singh in support of his submission that a town development scheme can also be prepared for the purpose of expansion and improvement of the town area and not just for implementation of the provisions of a development plan, is quoted herein below:
38. Establishment of town and County Development Authority-
(1)…
(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 provision of this Act vest in the Town and Country Development Authority established for the said area.
A reading of Sub-section (2) of Section 38 quoted above would show that the duty of acquisition and development of land for the purpose of expansion and improvement of the area specified in the notification under Sub-section (1) is vested in the Town and Country Development Authority established for the area. But Sub-section (2) of Section 38 of the Adhiniyam also makes it clear that such duty of acquisition and development of land for the purpose of expansion or improvement of an area specified in the notification under Sub-section (1) has to be performed by the Town and Country Development Authority subject to the provisions of the Adhiniyam.
17. Section 34 of the Adhiniyam is one such provision of the Adhiniyam and is titled ‘Obligation to acquire land’ and Sub-section 1(a) of Section 34 of the Adhiniyam reads thus:
34. Obligation to acquire land-
(1) Where any land is designated by a development plan as subject to compulsory acquisition-
(a) for development for the purpose of town expansion or town improvement, or
(b)…
(c)…
The owner may serve on the State Government within such time, in such manner and together with such documents as may be prescribed, a notice requiring the appropriate authority to purchase the interest in land in accordance with the provisions of this Act.
The aforesaid Sub-section 1(a) of Section 34 of the Adhiniyam provides that where any land is designated by development plan as subject to compulsory acquisition for the purpose of town expansion or town improvement, the owner may serve on the State Government within such time, in such manner and together with such documents as may be prescribed, a notice requiring the appropriate authority to purchase the interest in land in accordance with the provisions of the Adhiniyam. The aforesaid provision establishes that for development for the purpose of town expansion or town improvement, acquisition of land can be made if such land is designated by the development plan as subject to compulsory acquisition. In other words, the duty of acquisition of designated land for the purpose of expansion or improvement of a town area is to be performed by the Town and Country Development Authority in accordance with a development plan and not otherwise. The opinion expressed by the Division Bench of this Court in the judgment in W.A No. 433 of 2006 and the contention of the learned Advocate General that without the area being included in the development plan, a town development scheme can be prepared for the purpose of expansion or improvement of a town area therefore in misconceived.
18. In fact, the legislative scheme of the Adhiniyam also shows that a town development scheme can only be made for implementation of the development plan. Section 2(g) of the Adhiniyam does not state what the development plan means but only states that it includes a zoning plan. To understand what the development plan means, we will have to refer to Section 17 of the Adhiniyam which deals with contents of development plan. Section 17 of the Adhiniyam is quoted herein below:
17. Contents of development plan-
(1) A Development plan shall take into account any draft five year and Annual Development plan of the district prepared under the Madhya Pradesh Zila Yojana Samiti Adhiniyam, 1995 (No. 19 of 1995) in which the planning area is situated and shall-
(a) indicate broadly the land use proposed in the planning area;
(b) allocate broadly areas or zones of land for-
(i) residential, industrial, commercial or agricultural purpose;
(ii) open spaces, parks and gradens, green-belts, zoological gardens and play grounds;
(iii) public institutions and offices;
(iv) such special purposes as the Director may deem fit;
(c) lay down the pattern of National and State Highways connecting the planning area with the rest of the region, ring roads, arterial roads and the major roads within the planning area.
(d) Provide for the location of air-ports, railway stations, bus terminus and indicate the proposed extension and development of railways and canals;
(e) Make proposals for general landscaping and preservation of natural areas;
(f) Project the requirement of the planning area of such amenities and utilities as water, drainage, electricity and suggest their fulfillment;
(g) Propose broad based regulations for zoning, by way of guidelines, win each zone or sector of the location, height, size of buildings and structures, open spaces, court yards and the use to which such buildings and structures and land may be put;
(h) Lay down the broad-based traffic circulation patterns in a city;
(i) Suggest architectural control features, elevation and frontages of buildings and structures;
(j) Indicate measures for flood control, prevention of air and water pollution, disposal of garbage and general environmental control.
It will be clear from a reading of Section 17 of the Adhiniyam that a development plan shall indicate broadly the land use proposed in the planning area and. allocate broadly areas or zones of land for residential, industrial, commercial or agricultural purpose, open spaces, parks and gardens, green belts, zoological gardens and playgrounds, public institutions and offices and such special purposes as the Director may deem fit.
19. Since Section 2(g) provides that in the Adhiniyam, unless the context otherwise requires, development plan includes a zoning plan, we must find the meaning of a zoning plan. Theexpression ‘zoning plan has also not been defined in Section 2 of the Adhiniyam but the word ‘zone’ has been defined in Section 2(w) to mean any section of a planning area for which, under the development plan, a detailed zoning plan is prepared. Section 21 of the Adhiniyam deals with contents of zoning plan and is quoted herein below: – 21. Contents of Zoning Plan-
(1) The zoning plan shall enlarge the details of land use as indicated in the development plan and shall-
(a) indicate the land liable to acquisition for public purpose for the purposes of the Union Government, the State Government, a Town and Country Development Authority, a Special Area Development Authority, a local authority, a public utility or any other authority established by or under any enactment for the time being in force:
Provided that no land shall be so designated unless the acquisition proceedings are likely to be completed within ten years of the preparation of the plan;
(b) define in detail and provide for areas reserved for agriculture, public and semi public open spaces, parks, playground, gardens, recreational areas, green-belts and nature reserves;
(c) allocate in detail areas or zones for residential, commercial, industrial, agricultural and other purposes;
(d) define and provide for the complete road and street pattern for the present and in the future and indicate the traffic circulation;
(e) lay down in detail the projected road and street improvements;
(f) indicate and provide for areas reserved for public buildings, institutions and civic developments;
(g) assess, make projections for and provide for the future requirements of amenities, Services, and utilities such as municipal transport, electricity, water and drainage;
(h) prescribe in detail the zoning regulations for each zone, with a view to facilitating an individual lay out and regulating the location, height number of storeys and the size of buildings and other structures, the size of the courtyards, courts and other open spaces and the use of the buildings, structures and land;
(i) define areas which have been badly laid out or areas which have developed so as to form slums, and provide for their proper development and/or relocation;
(j) designate areas for future development and expansion;
(k) indicate the phasing of the programme of development.
(2) The zoning plan may, and, if possible, shall indicate-
(a) control over architectural features, elevation and frontage of buildings and structures; and
(b) the details of development of specific areas for housing, shopping centres, industrial areas, educational and cultural institutions and civic centres.
A reading of Section 21 of the Adhiniyam quoted above would show that a zoning plan will contain the details of land use as indicated in the development plan and shall indicate interalia the land liable to acquisition for public purpose, area reserved for agriculture, public and semi public open spaces, parks, playground, gardens, recreational areas, green-belts and nature reserves, allocation details of areas or zones for residential, commercial, industrial, agricultural and other purposes etc.
20. Unless, therefore, a development plan is made, the town and country development authority cannot possibly prepare town development schemes as enumerated in Section 49 of the Adhiniyam. Section 49 of the Adhiniyam is quoted herein below:
49. Town Development Schemes – A town development scheme may make provision for any of the following matters-
(i) acquisition, development and sale or leasing of land for the purpose of town expansion;
(ii) acquisition, relaying out of, rebuilding, or relocating areas which have been badly laid cut or which has developed or degenerated into a slum;
(iii) acquisition and development of land for public purposes such as housing development, development of shopping centres, cultural centres, administrative centres;
(iv) acquisition and development of areas for commercial and industrial purposes;
(v) undertaking of such building or construction work as may be necessary to provide housing, shopping, commercial or other facilities;
(vi) acquisition of land and its development for the purpose of laying out or remodeling of road and street patterns;
(vii) acquisition and development of land for playgrounds, parks, recreation centres and stadium;
(viii) reconstruction of plots for the purpose of buildings, roads, drains sewage lines and other similar amenities;
(ix) any other work of a nature such as would bring about environmental improvements which may be taken up by the authority with the prior approval of the State Government.
A plain reading of Section 49 of the Adhiniyam quoted above would show that a town development scheme is to be made for the very purpose for which a development plan or a zoning plan is to be made, and a town development scheme cannot run contrary to a development plan or a zoning plan. In fact, if a town development scheme comes in conflict with the development plan or a zoning plan, the entire purpose of a development plan and a zoning plan would be frustrated.
21. From the scheme of the Adhiniyam, we also find that whereas the power to finalise and sanction the development plan is vested in the State Government and the power to finalise a zoning plan is vested in the local authority, the power to prepare a town development scheme is vested in the town and country development authority. Section 19 of the Adhiniyam confers power on the State Government to approve a development plan and finally publish the same. Under Section 20 of the Adhiniyam, the local authority has been vested with power to prepare a zoning plan. Under Section 50, the Town and Country Development Authority has been vested with the power to prepare a town development scheme. Obviously, all these powers conferred on different authorities under the Adhiniyam have to be exercised in a consistent manner and a town development authority cannot prepare a town development scheme which runs contrary to the development plan approved by the State Government or a zoning plan prepared by the local authority.
22. It is true as has been contended by Mr. Bhargava that a draft development plan will first have to be made and published in accordance with Section 18 of the Adhiniyam. But until the draft development plan is approved by the State Government and published, the development plan does not come into operation. This would be clear from the provisions of Section 19 of the Adhiniyam quoted herein below:
19. Sanction of development plans-
(1) As soon as may be after the submission of the development plan under Section 18 the State Government may either approve the development plan or may approve it with such modifications as it may consider necessary or may return it to the Director to modify the same or to prepare a fresh plan in accordance with such directions as the State Government may deem appropriate.
(2) Where the State Government approves the development plan with modifications, 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.
(3) After considering objections and suggestions and after giving a hearing to the person desirous of being heard, the State Government may confirm the modification in the development plan.
(4) The State Government shall publish a public notice in the Gazette and in such other manner as may be prescribed of the approval of the development plan approved under the foregoing provisions and the place or places where the copies of the approved development plan may be inspected.
(5) The development plan shall come into operation from the date of publication of the said notice in the Gazette under Sub-section (4) and as from such date shall be binding on all Development Authorities constituted under this Act and all local authorities functioning within the planning area.
A reading of Section 19 of the Adhiniyam, quoted above, would show that till the development plan is finally approved and published, the State Government retains the power to modify the development plan after considering objections and suggestions and after giving a hearing to the persons desirous of being heard. Hence, a draft development plan cannot be equated with a development plan which is finally approved and published by the State Government and which comes into operation from the date of publication. Sub-section (5) of Section 19 further provides that as from the date of publication of the development plan, it becomes binding on all Development Authorities constituted under the Adhiniyam and all local authorities functioning within the planning area. A Town and Country Development Authority, therefore, can frame a town development scheme for an area if a development plan for the area is in existence and not otherwise.
23. Moreover, Article 300A of the Constitution provides that no person shall be deprived of his property save by authority of law. The right to property of a person includes his right to construct on his land and this right can be restricted only by law. Section 53 of the Adhiniyam provides that as from the date of publication of 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 authorized by the Director in accordance with the provisions of the Act prior to the publication of such declaration. Hence, on the publication of declaration to prepare a town development scheme, a person can change the use of his property in the area of the town development scheme only with the authorization of the Director in accordance with the provisions of the Act. The provisions of the Act which empower the Director to authorize change in the use of any property are Sections 16and26of the Adhiniyam. Section 16provides that on the publication of existing land use map under Section 15 of the Adhiniyam, no person shall institute or change the use of any land or carry out any development of land for any purpose other than that indicated in the aforesaid land use map without prior permission in the writing of the Director and similarly 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 map without prior permission in writing of the Director. The power of the Director to grant or withhold permission under Section 16 of the Adhiniyam is to be guided by the policy of the Legislature contained in Section 14 of the Adhiniyam. Section 14 provides that subject to the provisions of the Act and the rules made thereunder, the Director shall prepare a development plan. Hence, while granting or refusing permission under Section 16, the Director will have to see whether the use of the land or property proposed in the application for permission will be consistent with the development plan under preparation. Section 26 provides that after the coming into operation of the development plan, no person shall change the use of any land or carry out any development of land without the permission in writing of the Director. This power of the Director has to be exercised in accordance with the policy of the Legislature in Sub-section (1) of Section 25 of the Adhiniyam which provides that after the coming into force of the development plan, the use and development of land shall conform to the provisions of the development plan. Hence, while granting or refusing permission under Section 26, the Director will have to see whether the use of the land or property proposed in the application for permission will be consistent with the development plan finalized, approved and published by the State Government under Section 19 of the Adhiniyam. It will thus be clear that under the Adhiniyam, a town development scheme by itself does not put any restriction on the right of a person to use his property located in the area of the town development scheme and is not enforceable as such without a development plan under preparation or a development plan published for the area. Instead, the restrictions on the right of a person to change the use of his property located in the area of the town development scheme is because of the development plan under preparation or the development plan published for the area. Since the Director is aware of the details of the development plan under preparation and the development plan published by the State Government for the area, power has been vested by the Adhiniyam on the Director to grant or to withhold permission to a person to change the use of his property located in the area of town development scheme so that such use is consistent with the development plan under preparation or the development plan published for the area.
24. In a recent decision in T. Vijayalakshmi and Ors. v. Town Planning Member and Ors. (supra), the Supreme Court has held:
13. Town Planning Legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act….
15… 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.
This decision of the Supreme Court that the right to property cannot be restricted unless a comprehensive development plan was prepared is based on the interpretation of the provisions of the Karnataka Town and Country Development Act. Under the scheme of the Adhiniyam, we have seen, the right to property of a person located in any area cannot be restricted unless a development plan is under preparation or has been published for the area.
25. We therefore hold that “town development scheme” in Section 50 of the Adhiniyam means a scheme to implement the provisions of a development plan and until a development plan for an area is published and comes into operation, a draft town development scheme cannot be published by the Town and Country Development Authority under Section 50(2) of the Adhiniyam and 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 within the area of the scheme in the manner he likes, but the Director in exercise of his powers under Section 16 of the Adhiniyam can refuse permission to a person to change the use of his property within the planning area if the change proposed is contrary to the development plan under preparation.
26. In view of our aforesaid conclusion, it is not necessary for us to decide the question whether the Draft Scheme No. 164 published under Section 50(2) of the Adhiniyam by the Indore Development Authority is invalid having been published without the prior permission of the State Government as required by the guidelines of the State Government in the letter dated 18-11-1999.
27. In the result, the writ appeal is allowed. The 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 publishing Draft Scheme No. 164 under Section 50(2) of the Adhiniyam in so far 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. 165 under Section 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. Considering the facts and circumstances of the case, however, the parties shall bear their respective costs.