TMI Blog1971 (8) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal limits of the Bandra Municipal Committee. That Committee, by a resolution dated 15th June, 1948, declared its intention to frame a Town Planning Scheme under section 9(1) of the Town Planning Act, 1915. Thereafter, the Municipal Committee was abolished and the area of that municipality was absorbed within the limits of the Bombay Municipal Corporation. The Corporation, which. for the purpose of the Act, now became the local authority. applied to the Government, and on 7th May, 1951, the Government of Bombay sanctioned the making of the Scheme. On 30th April, 1963, a draft scheme was, prepared and published as required by the Act and it was duly sanctioned by the Government on 6th May, 1954. On 17th August, 1954, an Arbitrator was appointed to finalize the scheme and the Arbitrator formulated the final Scheme and published the same in the, Official Gazette, forwarding, at the same time, the Scheme to the President of the Tribunal appointed under section 32 of the Act. In the meantime, the Town Planning Act, 1915 was replaced by the Town Planning Act, 1954 which came into force on 1st April, 1957. Under section 90 the new Act, the final Scheme already formulated was adopted for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporary structures and also to provide roads and drains as directed in the Scheme. The Corporation, however, remained inactive and, hence, respondents 1 to 3 filed Writ Petition No. 474 of 1965 on the Original Side of the High Court on 13th October, 1965.By this petition, respondents 1-3 prayed to the Court : (1) to issue a writ of mandamus or a writ in the nature of mandamus against the appellants directing them to construct the roads and drains as indicated in the Town Planning Scheme and to complete the same for use within such time as may be fixed by the Court, and (2) to issue a writ of mandamus or any other appropriate writ directing the appellants to remove all the huts. sheds, stables and temporary structures from the 41 plots referred to above. The learned Judge held that, under the Town Planning Act and the Scheme, it was the primary responsibility of the Corporation, which was the local authority, to implement the Scheme and, accordingly, the writs as prayed were substantially granted. In appeal, the Appellate Bench of the High Court confirmed the order of the learned Judge with only minor variations. Hence, the present appeal. The controversy between the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d single Judge with regard to these huts, sheds and structures was clarified in appeal by limiting the writ as follows:- that the respondents 1 and 2 (the present appellants) do remove within one year from today all unauthorised huts, sheds, stables and other temporary structures standing and lying on the petitioners (the present respondents) said forty-one final plots. We asked Mr. Gupte, learned counsel for the respondents, as to what exactly was meant by the term unauthorised -whether it meant not authorised by the owners of the plots or not authorised by the Municipal Corporation or something else. He informed us that the relief that he really wanted was in terms of section 55 of the Act which gives the power to the local authority to remove, pull down or alter any building or other work which contravenes the Town Planning Scheme. If any of the structures or huts and sheds, etc. which were situated in these 41 plots did not contravene the Town Planning Scheme, he did not and could not ask for a writ of mandamus for the removal of the same. In view of this submission, the controversy is further narrowed down and the only question. with which we are now concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme is being prepared, the whole object of town planning will be frustrated. The Arbitrator appointed under the Scheme has to lay out the roads, the drains and make provision for public places such as gardens, hospitals and the like and, if private owners start erecting structures of more or less permanent nature, the cost of the Scheme might become prohibitive and the Scheme itself will flounder. Such is the importance of the Final Scheme as sanctioned by the Government that, under s. 51(3), the Town Planning Scheme has the same effect as if it were enacted in the Act. The Scheme naturally deals with the disposition of the land in the whole area. Titles are displaced and regulations are made with directions as to how the whole of the Scheme is to be implemented. The Arbitrator appointed under the Scheme has to lay out enacted in the Act. Against this background, we have to determine the question in issue before us. The important provisions, bearing upon the controversy, are sections 53, 54 and 55 of the Act. Section 53 provides :- On the day on which the final scheme comes into force,-- (a) all lands required by the local authority shall, unless it is otherwise de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, on the other, not achieve the object of removing the hutment dwellers as speedily as possible, thus frustrating the very object of town planning. It is not as if such a situation was not visualised by the Legislature, because the very next section, viz., section 54 gives ample powers to the local authority to do the needful. That section says :- On and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the local authority. All that the local authority has to see for the purpose of section 54 is whether any person is occupying any land in disregard of the rights determined under the final scheme and, if he does so, he is to be summarily evicted by the local authority. Section 55 is more explicit on the question. Sub-section (1) is as follows:-- (1) On and after the day on which the final scheme comes into force the local authority may after giving the prescribed notice and in accordance with the provisions of the scheme- (a) remove, pull down, or alter any building or other work in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o from the owner of the plot. Disputes are likely to arise whether any building or work contravenes a Town Planning Scheme and, so, provision is made for the same in sub-section (3) which is as follows :- (3) If any question arises as to whether any building or work contravenes a town planning scheme, or whether any provision of a town planning scheme is not complied with in the erection or carrying out of any such building or work, it shall be referred to the State Government or any officer authorised by the State Government in this behalf and the decision of the State Government or of the officer, as the case may be shall be final and conclusive and binding on all persons. It will, thus, be seen that section 55 provides a self contained code by which buildings and works situated in the whole of the area under the Scheme are liable to be removed or pulled down by the local authority if those buildings or works contravene the Town Planning Scheme. A proper implementation of the Scheme would undoubtedly entail considerable cost, but provision for the same is made in Chapter VIII of the Act, section 66 of which provides for the recovery of what are commonly known as bette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distribution and Valuation Statement, eleven Notes are appended which are important Note 1 says that all rights of mortgagors or mortgagees if any, existing in the original plots are transferred to their corresponding final plots. Note 2 deals with the rights of lessors and lessees in the original plots. By Note 3, all rights of passage hitherto existing are extinguished. By Note 4, agreements in respect of original plots are transferred to the final plots. By Note 5, the tenures of all original plots are transferred to the corresponding final plots. Note 6 permits the original plot-owners to remove their detachable material on the plot if they are deprived of the same. They are required to remove their wire-fencing, compound wall, sheds, huts or other structures. They can do so within three months from the date on which the final Scheme comes into force, the idea being that the final plots must be clean plots for being allotted to another under the Scheme. This permission under Note 6 has been given not because the local authority has no power to remove wire-fencing, huts, sheds, etc.; that power is there as already shown under section 55. But this is a concession made in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a more comprehensive legislation with regard to development and planning than the Bombay Town Planning Act, 1954 to the provisions of which we have already made a reference. By section 165(1) of the Maharashtra Regional and Town Planning Act, 1966, the Bombay Town Planning Act, 1954 is repealed; but, by virtue of subs. (2) of section 165, all Schemes finalised under the Bombay Town Planning Act, 1954 are deemed to have been framed under the corresponding provisions of this Act and the provisions of this Act shall have effect in relation thereto. The more important provisions of the Bombay Town Planning Act, 1954, to which a reference has been made by us above. were sections 53, 54 and 55. The corresponding provisions in the new Act are sections 88, 89 and 90. Section 53 consisted of two clauses (a) and (b). They are the same as the first two clauses (a) and (b) of the corresponding s. 88. One% more clause (c) is added which provides that the Planning Authority shall hand over possession of the final plots to the owners to whom they are allotted in the final Scheme. The Planning Authority is the same as the local authority under the Bombay Town Planning Act, 1954--in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Judges have exercised their discretion in directing that which is in itself lawful to be done, no other Court can question that discretion in so directing. In the present case, the High Court has exercised its discretion in directing the issue of the writ and this Court, in an appeal by special leave, will not ordinarily question that discretion. In The Queen v. Garland and Another, [1869-70] 5 Q.B. 269 which was cited by the learned Attorney-General before us, mandamus was refused practically on the ground that the petitioners therein had not come before the Court with clean hands. In that case, the trustee,-, proved the will of the testator, but not claim themselves to be admitted to the copyholds, though they were bound to do so, and called upon the lord of the manor to admit the infant heir by his guardians. The lord refused. If the trustees had done their duty by admitting to the copyholds, the lord would have been entitled to a double fine instead of a single fine on the admittance of the heir. In these circumstances, the Court refused a mandamus to compel the lord to admit the heir as, in the opinion of the Court, the effect of granting it would be to enable the tru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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