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MANEKLAL CHHOTALAL Versus M.G. MAKWANNA

1967 (3) TMI 115 - SUPREME COURT

Writ Petition No. 64 of 1966 - Dated:- 2-3-1967 - RAO, K. SUBBA (CJ), SHAH, J.C. SIKRI, S.M. RAMASWAMI, V. VAIDYIALINGAM, C.A., JJ. B. Sen Tricumlal J. Patel and I. N. Shroff, for the petitioner H. D. Banarjee, R. Ganapathy lyer, R. H. Dhebar and S. P. Nayyar, for the respondent Purshottam Tricumdas, Vithalbhai Patel, O. C. Mathur, J. B. Dadachanji and Ravinder Narain, for respondent no. 2. D. R. Prem and S. P. Nayyar, for the intervener. JUDGEMENT Vaidialingam, J. In this writ petition, under A .....

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e Act, in relation to the Town Planning Scheme, No. 19 (Memnagar), Ahmedabad. The circumstances under which the petitioners have come to this Court may be briefly indicated. The petitioners, who are stated to be members of a Hindu Undivided Family, owned certain extent of lands in two areas viz., Usmanpur Section and Wadej Section. In the former, they claim to have owned lands bearing survey numbers 41/1, 41/2 , 42, 51/1, 51/2 and 43, referred to as plot nos. 22 and 22-A, measuring 56,164 sq. yd .....

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The said declaration was published in the Bombay Government Gazette, dated September 3, 1959. A notification was issued on November 16, 1959, stating that the second respondent was preparing a Draft Town Planning Scheme, and stating that interested persons may appear before the Town Planning Committee, on December 2, 1959, at 4 p.m., for the purpose of having the proposals contained in the Scheme explained to the public and to elicit suggestions from the public with regard to those, proposals. .....

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19,087 sq. yds. and, as such, they stood to lose nearly 72 % of their lands. They also pointed out that they had been made liable to pay a heavy contribution of ₹ 30,13'//-. The petitioners suggested that the loss to each land-owner, should be equitably distributed under the Scheme and that they should be allotted lands of equal extent. On June 13, 1960, a Draft Town Planning Scheme was prepared, under s. 23(1) of the Act, and it was published in the, Gujarat Government Gazette, dated .....

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nning Officer, under s. 31(1) of the Act. Subsequently, there was a change in the personnel of the Town Planning Officer, originally appointed. Ultimately, the Town Planning Officer issued a public notice in October 1961, inviting objections and suggestions from owners of lands in respect of the Draft Town. Planning Scheme, which was being considered by him. The petitioners, again, filed objections in November 1961, before the said Town Planning Officer, and here also they reiterated the same ob .....

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issued notices in April and June 1962, to the petitioners. In the first notice, it was mentioned that the petitioners were being allotted new plots, nos. 32, 34 and 43, measuring 19,087 sq. yds as against plots nos. 22 and 22-A, measuring 56,164 sq. yds. It was also stated that the value of the original plots nos. 22 and 22-A, was ₹ 37,556/-and of the new plots nos. 32, 34 and 43, was ₹ 14,315/-and that, in consequence, the petitioners were entitled to apayment of compensation, under .....

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nd after giving credit to the petitioners, in the sum of ₹ 23,241/-, they were called upon to pay a sum of ₹ 37,397/-. The second notice also mentioned that, as against the peti- tioners' plot no. 195, measuring 14,520 sq. yds., no other plot was being allotted to them and that the compensation payable to them in respect of the said plot, without reference to the 'improvements in the Scheme, was ₹ 7,260/-. By virtue of these two notices, the petitioners were being allot .....

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Town Planning Officer, issued on January 20, 1965, two communications, stated to be his award, under s. 32(3) of the Act. In the first of these communications, the petitioners were informed that in lieu of their plot no. 22, measuring 37,873 sq. yds., they were allotted Final Plots nos. 52, 54 and 57, measuring 20,183 sq. yds., and the value, under s. 67 was fixed at ₹ 8,222/-. The petitioners were also informed that the calculation of increment of the value of 20,183 sq. yds allotted to t .....

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ds. The petitioners were further informed that for the loss of 16,932 sq. yds. they would be entitled to compensation under s. 67, in the sum of ₹ 4,622/-. The calculation of increment, with reference to improvement in respect of the final plots allotted as per s. 65, was stated to be ₹ 65,344/-. In consequence, the share of contribution, under S. 66, payable by the petitioners at the rate of 50%, was fixed in the sum of ₹ 32,672/-. Adjusting the sum of ₹ 4,622/-. being t .....

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f the final plots by giving a general reduction of 60 paise per square yard. As a result of the appeal, the petitioners had still to pay a contribution of a sum of ₹ 63,199/-, apart from losing 34,622 sq. yds., of land. The Town Planning Officer made consequential changes in his original award, incorporating the decision of the Board and forwarded the final Scheme to the State Government for its sanction. It is, at that stage, the petitioners have come to this Court, seeking the reliefs me .....

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ers relating to the working of the scheme, are unauthorised and unreasonable and that the powers vested in the Town Planning Officer, and the other authorities, under the Act, are unguided, arbitrary and uncontrolled and, therefore, the provisions of the Act infringe the fundamental rights of the petitioners under Arts. 14, 19(1) (f) & (g), and 31 of the Constitution. On behalf of the State, the third respondent, Mr. H. D. Banarjee, learned counsel, has pointed out that the-State Legislature .....

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es, and allotting sites for public purposes like schools, hospitals, markets, police-stations etc., the remaining lands are re-constituted by changing their boundaries in order to make the areas capable of being properly developed. Re-constituting of the plots is absolutely necessary inasmuch as in working out the Scheme, some area from an adjoining land may have to be added and some other area from the original holding may have to be taken away, as may be necessary, and to achieve the purposes .....

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who works the Scheme, has to act. Opportunity had been provided, at every stage, right from the beginning to the end, counsel points out, to owners of property, like the petitioners, to place their objections and suggestions. The petitioners also had taken advantage of those provisions and had been heard and their objections considered. All the important decisions of the Town Planning Officer are made the subject of appeals to a Board of Appeal, of which the President is an- experienced judicial .....

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e Ahmedabad Municipal Corporation, the second respondent herein. This will be a convenient stage to refer to the scheme of the Act and consider the question as to whether the State Legislature is competent to enact this legislation, because, if the contentions of the learned counsel for the petitioner that the State Legislature had no competence to enact this measure is accepted, no other questions will arise for consideration. There was. originally, an Act called the Bombay Town Plan- ning Act, .....

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1915 Act for the limited purpose of showing that the said Act was conceived with the intention of regulating the development of certain areas for the purpose of securing proper sanitary conditions etc.. to the persons living not only in such areas, but also in neighbouring areas. The Act came into force on April 1, 1957, and, there is no controversy, that it has been made applicable to the State of Gujarat. In some respect the Act was amended by the Amending Act of 1963. The Act is a legislatio .....

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wn planning scheme. Sections 3 to 17, in Chapter 11, deal with development plans. Section 3 makes it obligatory on a local authority to carry out a survey of the area within its jurisdiction and to prepare and publish, in the prescribed manner, a development plan and to submit the same to the State Government for sanction. Sub-section (4) of s. 3 gives power to the State Government to prepare and publish, in the prescribed manner, a development plan, in the circumstances mentioned therein. Secti .....

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to the State Government and another copy is to be made available, by the local authority, for inspection by the public. Under s. 7, the development plan has to indicate the manner in which the development and improvement of the area is to be carried out and regulated, and it shall contain the proposals mentioned in clauses (a) to (e). The particulars referred to in s. 8 have to be published and submitted to the State Government, along with the development plan. Section 9 provides for the local a .....

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be notified in the Official Gazette. Section II gives power to the local authority to acquire either by agreement or under the Land Acquisition Act of 1894, any land designated in the development plan for a Purpose specified in clauses (b) to (e) of s. 7. The re- maining sections in Chapter 11, deal with matters like placing restriction on an owner doing any work on the land, after publication of the declaration of intention under s. 4(1), and the local authority granting permission to the owne .....

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Section 19 relates to a decision being given by the Town Planning Officer, relating to disputed ownership of the properties comprised in the scheme but it is made clear that any decision given by him, though not subject to appeal, shall not operate as a bar to a regular suit. It also makes provision for any decision given on this question by the Town Planning Officer being corrected, modified or rescinded in the event of a Civil Court making an adjudication. Section 20, is an enabling provision .....

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ake a town planning scheme by resolution. The local authority is to publish its declaration, within the time mentioned therein; and it is also bound to despatch a copy thereof to the State Government, along with a plan showing the area which it proposes to include in the. scheme. Sub-s. (4) of s. 22 provides for a copy of the plan being made available to the public for inspection. Section 23 provides for the local authority, in consultation with the Consulting Surveyor, to make a draft scheme wi .....

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nner as to make it suitable for building purposes. If the plot is already built upon, it provides that the reconstitution is to ensure that the building, as far as possible, complies with the provisions of the scheme as regards open spaces. Sub-section (2) of s. 26 specific.,, the nature of proposals, to be found in the draft scheme. In particular, it provides for a reconstituted plot being formed by alteration of the boundaries of the original plot; formation of re-constituted plot by the trans .....

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ates to filing of objections, within one month from the date of publication of the draft scheme, and the local authority being bound to consider those objections and making suitable modifications, as it thinks fit, before submitting the draft scheme to the State Government. Under sub-s. (1) or s. 28, the local authority has to forward, within the time mentioned therein, the draft scheme, together with any modifications made by it, along with the objections that may have been filed by persons aff .....

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will be open to the public for inspection. Chapter V. in which ss. 31 to 43 are to be found, deals with the Town Planning Officer and the Board of Appeal. Section 31 deals with the appointment of a Town Planning Officer, by the State Government, within one month from the date, on which its sanction to the draft scheme is published. It also provides for the State Government removing the said officer and appointing another officer, in circumstances mentioned therein. Section 32 enumerates the dut .....

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l authority which is beneficial to the owners and residents within the area of the scheme and partly to the general public and which are to be included in the cost of the scheme estimate the increment to accrue in respect of each plot included in the final scheme; calculate the proportion in which the increment of the plots included in the final scheme shall be liable to contribution to the costs of the scheme; calculate the contribution to be levied on each plot included in the final scheme; de .....

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34 provides for decisions given by the Town officer under the clause as shown above being communicated to the party concerned and it t right to any person aggrieved by that decision, to appeal, within one month from the date of communication of the decision, to the Principal Judge of City Civil Court, Bombay, in Greater Bombay and elsewhere, to the District Judge. The appeal is to be disposed of by a Board of Appeal constituted under s. 35, according to which it should consist of a President and .....

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odify or vary his decision in accordance with the decision of the board of apple and the decision of the board of appeal being final and conclusive and binding on all persons. Section 13 provides for the Town Planning Officer forwarding to the State Government, the final scheme as varied by him, in accordance with he decision, if any, of the Board of Appeal, along with his decision'. and a copy of the decision of the Board in appeal. Chapter VI. which comprises ss. 44 to 61, relates to the s .....

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s of ss. 62 and 63 and deals with joint own planning schemes. Chapter VIII. which comprises ss. 64 to 78, deals with finance. Section 64 refers to what all items shall be included in the costs of a town planning scheme. The difference between the total values of the original plots and the total values of the plots included in the final scheme, which is to be fixed under s. 32(1)(iii) by the Town Planning Officer, is to be arrived at in the manner provided in S. 64 (1) (f ) . Broadly, the estimat .....

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. 65. Here again, it will be seen that the estimate that is to be made is the market value of a plot included in the final scheme, as on the date of the declaration of intention to make a scheme, on the assumption that the scheme has been completed and the market value of the said plot on the same date, without reference to the improvements contemplated in the scheme, has been taken into account. Section 66 relates to contribution towards costs of the scheme and the Town Planning Officer must,ha .....

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Officer, under s. 32 (1) (xii), must be in accordance with the provisions of s. 68. Section 71 provides for payment of compensation to the owner of an original plot who is not provided with a plot in the final scheme or if the contribution to be, levied from him under s. 66 is less than the total amount to be deducted therefrom under any of the provisions of the Act. Section 73 provides for payment, by the local authority, by adjustment of account, of payments due to be made to any person. Chap .....

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us-.(i) in the proviso to sub-s. (1) of s. 66, has been substituted by a new clause. That relates as to how exactly the cost of the scheme is to be met. Section 7 of the Amending Act validates certain actions taken and things done and, in particular, cl. (a) of this section provides that the validity of a Town Planning Scheme already sanctioned or continued as sanctioned, cannot be called in question merely on the ground that a development plan, in respect of the area to which the Town Planning .....

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in view of the retrospective nature of the Amending Act. No doubt, according to the petitioners, the Act as well as the Amending Act, are both void because the Legislature had no competency to enact these statutes. That is a different aspect, which will be dealt with by us presently. Under s. 87 of the Act, the State Government has framed rules on November 15, 1955, called the Bombay Town Planning Rules, 1955, hereinafter called the Rules. It is only necessary to run through some of the materia .....

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) to (g) of s. 25. Rule 21 deals with the procedure to be followed by the Town Planning Officer. Rule 23 deals with the procedure to be adopted by the Board, on appeal. Rule 33 deals with the manner of serving notices; and r. 34 deals with proceedings of local authorities. We have only broadly referred to some of the rules. A perusal of the rules clearly shows that elaborate provisions have been made for giving as wide a publicity, as possible, at all stages, to the public and to owners of land, .....

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riginally owned by him, to another person to whom it may be allotted under the Act. The Act also provides for extinguishment of rights of the original owner in the plots concerned. These are, according to learned counsel, not covered by any of the entries either in List 11 or List III of the Seventh Schedule to the Constitution. Again, it is pointed out, that the Act requires owners of the plots to pay compensation which is really, so to say, a tax levied by the State on capital assets, for whic .....

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enth Schedule. Entry No. 18 of List 11 is as follows :- "Land, that is to say, rights in or over land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land improvement and agricultural loans; colonization." The legislation, in question, can be broadly stated to be a legislation in regard to land. As pointed out by this Court in Sri Ram Narain Medhi v. The State of Bombay([1959] Supp, 1 S.C.R. 489,496). "It .....

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construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude." In construing Entry No. 18, of List III, this Court, in Atma Ram v. The State of Punjab(1), adopted the interpretation placed by the Judicial Committee of the Privy Council in Megh Rai v. Allah Rakhia(2), while construing Item 21 of List II (Provincial List) of the Seventh Schedule to the Governmen .....

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onstruction, unless, for some reasons, it is cut down either by the terms of that item itself, or by other parts of the Constitution, which have, naturally, to be read as a whole; and then proceeded to make the following very significant observations :- "As to item 21, 'land', the governing word, is followed by the rest of the item, which goes on to say, 'that is to say'. These words introduce the most general concept-rights in or over land'. Rights in land' must inc .....

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Legislature to enact the measure, in question, can be found in Entry No. 18. We are further satisfied that the competency of the State Legislature can also be rested under Entry No. 20, of List III, which is as follows:- "20. Economic and social planning". In Principles of Town & Country Planning by Lewis Keepl the scope of planning has been stated thus planning has both social and economic aims. Socially, successful Planning tends to make people's lives happier because it resu .....

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in human activities being carried on more efficiently and less wastefully, and thus increase wealth;" In Corpus Juris Secundum, Vol. 70, the word "planning" is stated to mean: "In connection with municipalities, the term connotes a systematic development contrived to promote the common interest in matters embraced within the police power, with particular reference to the location, character, and extent of streets, squares, parks, and to kindred mapping and charting." In .....

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ting and design. Thus city planning may be described as a social movement, as a governmental function, or as a technical pro- fession. Each aspect has its own concepts, history and theories. Together they fuse into the effort of modem society to shape and improve the environment within which increasing proportions of humanity spend their lives : the city." We have already very elaborately referred to the various provisions contained in the Act; and we have also pointed out that the original .....

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ntion of the learned counsel for the appel- lant, we have already pointed out, is that unguided and un- controlled power has been vested in the authorities concerned in the matter of framing the scheme and that no principles have been laid down in the Act as to how exactly an allotment has to be made of the lands in question to the original owners. According to learned counsel, no principles have been laid down as to how exactly compensation, which is made payable to parties like his clients, is .....

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the object sought to be achieved, the Act in question can be considered to impose reasonable restrictions and therefore the legislation is valid under Art. 19(1)(f) of the Constitution. We do not think it necessary to go into the question in this case, as to whether the petitioners are at all entitled to invoke Art. 19 of the Constitution. On the assumption that they are entitled to; we shall consider as to whether the Act, in question, can be sustained under Art. 19(5), as imposing reasonable r .....

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or excessive, or beyond what a required in the interest of the general public. The reasonableness of a restriction shall be tested both from substantive and procedural aspects. If an uncontrolled or unguided power is conferred, without any reasonable and proper standards or limits being laid down in the enactment, the statute may be challenged as discriminatory. Bearing these principles in mind, the question is whether the grievance of the petitioners in this regard, is well-founded. No doubt. .....

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local authority, by the State Government and by the other authorities concerned, in the matter of preparing and finalizing a Town Planning Scheme. At all stages very wide publicity is given, by the authorities concerned, in the matter of making known its proposals to the public and to the owners of land, who are sought to be affected by the Scheme. Provisions have been made for filing of objections and suggestions and the authorities being bound to take into account those objections and suggesti .....

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s been unfettered and arbitrary power vested in the Town Planning Officer in the matter of deciding the various points covered by s. 32 of the Act. We have already indicated that the procedure to be adopted by the Town Planning Officer has been dealt with elaborately, by the relevant rules. As to how exactly he has to decide the particular matters, referred to in cls. (iii), (viii), (ix), (xi) and (xii) of s. 32(1) of the Act, have been indicated in the reference made by those sub-clauses to ss. .....

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s. 71 comes into operation. Therefore, it will be seen that it is riot as if the Town Planning Officer is left with any unguided discretion and arbitrary power in dealing with matters under 32(1). No doubt, every decision given by the Town Planning Officer, under s. 32, is not appealable; but the important decisions that are to be given by him, for instance, under cls. (v),(vi), (viii), (ix), (x) and (xiii), are appealable under s. 34 to a Board of Appeal, which is presided over by a Judicial O .....

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ow that the grievance of the petitioners that Art. 14 is violated, is also not acceptable. The petitioners, no doubt, urge that a very exhorbitant price is being fixed by the Town Planning Officer regarding the value of the reconstituted plots allotted to them. Those are matters of detail, and they are covered by the provisions of the Act referred to above. The petitioners, no doubt, make a grievance of their having lost a fairly large extent of land, which, according to them, amounts to depriva .....

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