JASWANT SINGH MATHURA SINGH AND ANR. v. AHMEDABAD MUNICIPAL CORPORATION AND ORS

Citation: [1991] SUPP. 1 S.C.R. 226

Court: Supreme Court of India

Bench: RANGANATH MISRA, KULDIP SINGH, K. RAMASWAMY

Case summary

Though the challenge in the appeal is confined to a limited point, as ,. 669n6 allowed the appeal alongwith other bunch of appeals holding that the decision in Dungarlal Harichand v.

Judgment text

The Judgment of the Court was delivered by K. RAMASWAMY, J. This appeal by special leave is against the judgment of the Division Bench in L. P. A. No. 114 of 1977 dated May 4, 1977 of the_Gujarat High Court. The one question for decision in this appeal is whether the compliance of sub-rules (3) and (4) of Rule 22 of Bombay Town Planning Rules 1955 for short 'the Rules' is mandatory and whether the violation thereof invalidates the final town planning 'scheme. In a suit laid by the appellants, the trial court found as a fact that the appellant, a partnership firm, was continuing in possession of the old premises bearing M. C. No. 352/3 (S) No. 163-A-2 from the year 1940 as a direct tenant of Ahmedabad Panjara Pole, Barartha, a registered trust, the owner of the plot of land of survey No. 163 situated in Ward No. ·•c• in front of town hall in Sher Kota outside Saraspur gate in the city of Ahmedabad. ·The original plot consists of an area about 5 hundred to 6 hundred square yards in.

extent wherein' certain structures were laid and leased out to the tenants or sub-tenants for business purposes. The Town Planning Scheme was formulated by the municipal corporation in exercise of its power under the Bombay Town Planning Act 1955 (Act 27 of 1956) for short 'the Act' and reconstituted the final plot Nos. 82 and 83 out of the original plot No. 59 of the Town Planning scheme No. 16, Sher Kota Admn. (Survey No. 163). The Town Planning Officer did not issue special notice as required under sub-rule (3) and opportunity provided for under sub-rule (4) of Rule ~-- 21. The appellants along with others filed civil suits challenging the action. The appellants' suit was decreed declaring that final plot Nos. 82 and 83 upon which the structures were standing with Municipal No. 35213 and in F . occupation of the appellants is illegal, invalid and issued a permanent injunction restraining the respondent not to enforce the reconstituted plot Nos.

82 and 83 until due procedure is followed. The learned Single Judge in F'rrst Appeal No. 669n6 allowed the appeal alongwith other bunch of appeals holding that the decision in Dungarlal Harichand v. State ofGujarat & Ors. , 1976 (17) G. L. R. 1152 (Full Bench) ratio applies to the facts in this case and the appellants are not entitled to special notice required under sub-rule (3) and opportunity under sub-rule (4) of Rule 2L The failure to . comply therewith does not vitiate nor render the draft scheme or the final scheme a nullity. Accordingly the learned single Judge allowed the appeal, set aside the decree of the trial court and dismissed the suit. On Letter Patent Appeal, the Division Bench confirmed the same. Thus this appeal. Sbri Mehta, the learned Senior Counsel for the respondents claimed that special notice required under sub-rule (3) and the opportunity under sub-rule (4) of Rule 21 were not mandatory. Hence they were not complied with.

Since sub-ruJe (3) of Rule 21 is only an additional advantage, it is not indispensable. At any rate it could be waived. The framing of the town planning scheme and its final approval is for the benefit of the residents of the local authority as an amenity provided therein to the general public i. e. construction of General Post· Office. The interest of the general public J outweighs the individual interest. Therefore, sub-rule (3) of Rule 21 is not ~ mandatory. A bird's eye view of the statutory scheme and its effect on the right and interest of the owner or tenant would point poignantly that the contention is devoid of substance. The Act as modified and adapted by the Gujarat Adaptation of Laws (State Amendments) Order 1963. as amended from time to time was to ensure that the town planning schemes are made in a proper manner and execution thereof is made effective. The local authority has to prepare a development plan (Master Plan) for the entire area within its jurisdiction.

Section 2(2) defines development plan means a plan for the development and redeveiopment or improvement of the entU:e area within the jurisdiction of a local authority prepared under section 3. The local authority has been defined under section 2(4) to mean municipal corporation or municipality etc. Section 2(5) defines owner in an inclusive way saying that any person for the time being receiving or entitled to receive ..... the rent or profits of the property in oonnection with which it is used; Section 2(3) defines "plot" to mean "a continuous portion of land held by one ownership". Section 2(9) defines "reconstituted plot" to mean a plot which is in any way altered by the makingofa town planning scheme. Section 2(10) defines "scheme" to include "a plan relating to a town planning scheme"~ Section 3(1) empowers every local authority to prepare and publish in the prescribed manner a development plan and to submit it to the State Govt.

for sanction otherwise Government too is empowered to do so. Under sub-section (1) of s. 4 the local authority is authorised to make a declaration of its intention to prepare a development plan and to despatch a copy thereof to the State Govt. for publication in the Official Gazette. The State Govt. after inviting suggestions from the public within a period of two months is to publish in the Official Gazette the fact of making such dec~ation or intention as aforesaid. Section 7 prescribes the particulars of the Master Plan. · Chapter III prescribes the making and the contents of the town planning scheme. Section 18 provides that a local authority may make one or more town planning schemes for the area within its jurisdiction or in part y thereof, regard being had "to the proposal in the final development plan. .

Sub-section (2) provides that such town planning scheme "may make provisions" for any of the following matters: - · (a) "the laying out" or "relaying out of land", either vacant or "alreadybuilt upon"; . (b)......... (omitted being irrelevant); (c) lay out of new streets or roads, constructions diversion, extension, . alteration, improvement and stopping up of streets, roads and communications; (d) the construction, "alter~tion" and "removal of buildings", bridges and other structures; · · (e) "the allotment" or "reseriration" of land for roads, open spaces, gardens, recreation grounds, school, market, green belts and dairies, transport facilities and public purposes of all kinds; (1) drainage inclusive of sewerage, surface or sub-soil drainage and sewage disposal; (g) lighting; (h) Water supply; (i) Omitted. ~ G) "imposes" sub-section.

(2) "conditions and restrictions" in regard to the "open space to be maintained about buildings", the percentage of building area for a plot, the number, size, ·height and character of buildings allowed in specified areas, the p. urposes to which buildings or specified areas may or not be apprcipriated,'"the sub-division of plots", the discontinuance of objectionable users of. land in any area in reasonable p~riods, . parking space and loading and unloading space for any building or the sizes of projections and advertiseme! lts signs. ~~/Fff (k) & (1) Omitted. In ChapterJV under sub-sec. (1) of s. 22, the local authority-may by a resolution declares its intention to make a town planning sche~e in respect of the whole or any part ofilie land which is in the course of development JASWANr SINGH v. MUNICIPAL. CORPN. [ RAMASWAMY,J. ] 233 or likely to be used for building purposes or already built upon.

Within 21 days from the date of such declaration it shall publish it in the prescribed manner (the details are not relevant here) and shall despatch a copy thereof to the State Govt. Under sub-section (1) of s. 23, within 12 months from the date of such declaration or extended period not exceeding six months, the draft scheme for the area in respect of which the declaration has been made by a notification in the official Gazette, shall be approved. Section 25 . B envisages specification of the particulars in the draft scheme. Clause (a) "specifies the area", "ownership" and "tenure of each original plot"; (b) the land allotted or reserved under sub-clause (a) of Clause (2) of s. 18; (c) "the extent" to which it is "proposed to alter the. boundaries of original plots" etc. Under section 26 "the size and shape of every reconstituted plot" shall be determined, so as to render it suitable for building purposes etc. with further particulars enumerated in sub-sections. (2) and (3) thereof.

·Section 27 gives an opportunity to any person effected by such scheme to submit objections, if any, within six months·from tl}e date of publication of the draft scheme. The local authority shall consider such objections; it is empowered to modify such scheme as it thinks fit in the light of the objection and then to submit it to the State Govt. within four months from the date of its publication in the official Gazette as required under section 28(1). The State Govt. within six months from the date of the submission of the draft scheme by the local authority original or with modification shall sanction such scheme with or without any further modification and publish the same in the official Gazette with such conditions as it may think fit. Such scheme shall be open to the inspection of the public under s. 28(3). Under section 31(1), within one month from the date of the publication of the draft sanctioned town planning scheme, the State Govt.

shall appoint a Town Planning Officer who is to make final scheme while performing the duties imposed on him under s. 32 in accordance with the procedure prescribed in s. 32 and the Rules. Under section 32 after not~ce given in the manner, it defines and demarcates the areas allotted to, or_ reserved, for a public purposes or purpose of the local authority and the reconstituted plots; indicate the person to be allotted of ownership in reconstituted plot in common and the shares of such persons, etc. He has also to fix the difference between the total of the value of the original plot and the total of the plots included in the final scheme etc.

He has also to calculate or to estimate the compensation payable on each plot used; the contribution to be levied on each plot used, or reserved for a public purpose; of use partly to the owner and partly to the public; to determine the l\ft\()Un\ of exemption, if any, from payment of die contribution of the lands occupied by religious and charitable purposes. The contribution of the costs in the final scheme is also enjoined to be calculated and to determine y the liabilities etc. as indicated in Clauses (vi) to (xi). Clause (xii) provides for the total or partial transfer of any right in any original plot to a reconstituted plot or provide for the extinction of any right in an original plot in accordance with the provisions contained in s. 68 and then has to draw plan as provided under clause (xiv) in the final scheme in accordance with the draft scheme.

Under the proviso it is empQwered to make variation from the draft scheme the details of which are not necessary but suffice to state that under the proviso no substantial variation shall be made by the Town Planning Officer without the consent of the local authority and without hearing any objections which may be raised by the · owner concerned. Thereafter, the decision of the Town Planning Officer subject to an appeal, if any, th<>. State Govt. under section 34, shall make it final and binds the parties. The final scheme shall b» published, after following the procedure in Rule 21(1) to (8), as per sub-rule (9). Section 54 provides that 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 shall be ejected summarily as per the prescribed procedure and local authority shall also be entitled to remove,.

¥ pull down or alter any building or other work in the area included in the scheme under section 55 after giving notice in the prescribed manner and in accordance with the procedure of the scheme. Section 56 gives power to the State Govt. to vary scheme on grounds of irregularity or infirmity in making the scheme. Under section 60 every party to any proceeding before the Town Planning Officer shall be entitled to appear either in person or by his recognized agent. Though the challenge in the appeal is confined to a limited point, as ,. ,.... _--.... will presently appear, we have given the conspectus of the statutory scheme to bring out the fact that the Town Planning Officer before making the final · scheme and submitting it to the local authority is required to follow the procedure·prescribed by the Act and the Rules. He is.

entitled to alter the · plots, make reconstitution of plots, determine the persons entitled to real- Jotment on reconstitution; to reserve the area for public purpose; determine the compensation; liability of the owner to contribute the amount; to provide amenities etc. At the relevant stages, he is required to issue notice · to the effected person. The question is whether the tenant or a sub-tenant is a person interested and is entitled to notice. It is obvious that under s. 105 of Transfer of Property Act, a lease creates right or· an interest in enjoyment of the demised property and a tenant or a sub-tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law. Therefore, a tenant or a subtenant in possession of a tenement in the Town Planning Scheme is person interested within the meaning of Rules 21(3) & (4) of the Rules. But he must be in possession of the property on the crucial date i. e.

when the town plan scheme is notified in the official gazette. Every owner or tenant or . a sub-tenant, in possession on that date alone shall be entitled to a notice and opportunity. Undoubtedly, the Town Planning Scheme was published on July 1, 1951. There was inordinate delay in implementation of the scheme for 30 long years. Though Shri Parekh, learned counsel for the appellants, contended that a better scheme could be formulated for construction of a post office upon the reconstituted plot No. 82 by leaving out the shops in question; we are not inclined to embark upon an enquiry in that regard. The Act gives power to the local authority to have the matter investigated into and to formulate its town planning scheme; its approval is by the State Govt. ; an expert officer, namely, Town Planning Officer, thereafter, is appointed to finalise the scheme with all local assistance.

He, being an expert on the site, is entitled to look into all relevant aspects and to finalise the scheme for reconstitution of the plot or alteration of the boundaries etc. Appellants are entitled to notice under sub-rule (3) and a reasonable opportunity under sub-rule (4) thereof. Rule 21(1) to (8) lay down the procedure to be followed by the Town Planning Officer and it reads thus: 21. Procedure to be followed by Town Planning Officer: - The Town Planning Officer shall give notice to the date on which he will commence his duties and shall state therein the time, as provided in rule 30, within which the owner of any property or rights which is injuriously affected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the Town Planning Officer.

(2) The Town Planning Officer, shall, after the date fixed in the not. ice given under sub-rule (1), continue to carry on his duties as far as possible on working days and during working hours. (3) Special notice of at least three clear days shall be served . upon the person interested in any plot or in any particular comprised in the scheme, before the Town Planning Officer,