Full Judgment Text
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PETITIONER:
MANEKLAL CHHOTALAL & ORS.
Vs.
RESPONDENT:
M. G. MAKWANA & ORS.
DATE OF JUDGMENT:
02/03/1967
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
RAO, K. SUBBA (CJ)
SHAH, J.C.
SIKRI, S.M.
RAMASWAMI, V.
CITATION:
1967 AIR 1373 1967 SCR (3) 65
CITATOR INFO :
RF 1968 SC 303 (31)
RF 1977 SC2279 (27)
RF 1981 SC1597 (3)
RF 1986 SC 468 (20)
R 1988 SC1708 (15)
ACT:
Constitution of India, 1950, Arts. 14, 19 and 31; and Seven-
th Schedule, List II Entry 18, and List III, Entry 20-
Competency of State Legislature to enact Bombay Town
Planning Act (27 of 1955)-Act as amended by Bombay Town
Planning (Gujarat Amendment and Validating Provisions) Act
(52 of 1963), if violative of fundamental rights.
HEADNOTE:
The Ahmedabad Municipal Corporation published, under s. 22
of the Bombay Town Planning Act, 1954, a declaration of its
intention to make a town planning scheme in respect of
certain areas which included the lands of the petitioners.
The petitioners submitted their objections and suggestions.
A draft Town Planning Scheme was published thereafter under
s. 23 (1) and the petitioners again submitted the same
objections. After considering the objections and
suggestions, the draft scheme was forwarded to the State
Government under s. 28(1). The State Government sanctioned
the scheme under s. 28(2) and appointed a Town Planning
Officer under s. 31(1). He issued a public notice inviting
objections and suggestions from owners of land and the
petitioners reiterated their objections. The Town Planning
Officer, thereafter, -aye his decision under s. 32 regarding
the value of the land originally owned by the petitioners,
the extent of reconstituted land allotted to them, the
compensation payable to them, the value of the land allotted
to them taking into account the improvements in the Scheme
and the net amount payable by the petitioners as their share
of the contribution towards the cost of the Scheme. As a
result of the decision, the petitioners were allotted a much
smaller extent of land than they originally owned and were
directed to pay certain sums as their share of the con-
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tribution. On appeal under s. 34 the Board of Appeal
slightly reduced the amount payable by the petitioners. The
petitioners thereupon filed a writ petition in this Court
and contended that : (1) the State Legislature was not
competent to enact the statute, and (2) the provisions Of
the Act, by conferring arbitrary powers on the authorities
functioning under the Act and by depriving the petitioners
of theirproperty,infringed their fundamental rights under
Arts. 14, 19(1)(f) and 31.
HELD : (1) The heads of legislation in the Lists of the
Seventh Schedule to the Constitution should be given a large
and liberal interpretation unless cut down by the terms of
the item itself or by other part,,; of the Constitution, so
that, they may have effect in their widest amplitude.
Therefore, the various aspects dealt with in the Act can be
considered to deal with "land" in Entry 18 of List II and
the competency of the State Legislature can be found in that
entry. [78 F-G; 79 A, C-D, G]
Navinchandra Mafatlal V. Commissioner of Income-tax, Bombay
City, [1955] 1 S.C.R. 829, Sri Ram Ram Narain Medhi v. State
of Bombay [1959] Supp. 1 S.C.R. 489 and Atma Ram v. State of
Punjab, [1959] Supp. 1 S.C.R. 748, followed,
66
The Act is a legislation to consolidate and amend the law
for the making and execution of town planning schemes for
the healthy and orderly development of the area. With a
view to achieve that purpose, a very elaborate procedure and
machinery is prescribed in the Act. Therefore, the
competency of the State Legislature could also be rested on
Entry No. 20 of List III, which deals with "Economic and
Social Planning". [79 G-H; 80 H]
(2)The Act and the Rules make very elaborate provisions
regarding the formalities to be gone through, at every
stage, by the local authority, the State Government and
other authorities concerned in preparing and making final
the Town Planning Scheme. At all stages, very wide pub-
licity is given to the proposals. Provision has been made
for the filing of objections and suggestions and a duty is
cast on the authorities to take them into account. The
procedure to be adopted by the Town Planning Officer in the
matter of giving his decisions on the various aspects has
been indicated in s. 32 and in the Rules made under the Act.
Principles have also been laid down regarding the fixing of
the value of the original and the reconstituted plots., and
for fixing the amount of contribution payable by the various
owners of land. The contribution was payable in easy
instalments and was towards the cost of the scheme which the
local authority had to incur and was not a tax or fee. All
important decisions of the Town Planning Officer are
appealable to a Board of Appeal presided over by a Judicial
Officer of the status of a District Judge, and the procedure
to be adopted by the Board is also clearly indicated in the
Act and Rules. Therefore, the Act does not vest any
arbitrary or unguided power in the authorities and only
imposes reasonable restrictions on the petitioners’ right to
hold property. Hence, the Act is not violative of Art. 14
and is saved by Art. 19(5). [71 C-D; 82 A-D, H; 83 A-B, G]
The petitioners have no doubt lost a large extent of land.
But. having due regard to the scheme of the Act and the
object sought to be achieved, such results are inevitable.
Moreover, the reconstituted plots, though of a lesser area
have a higher value in view of the various improvements, and
so what the petitioners lost in actual area had been more
than sufficiently compensated by the increased value.
Therefore,, there is no question of any deprivation of
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property so as to attract Art. 31. [83 D-F]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 64 of 1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
B. Sen Tricumlal J. Patel and I. N. Shroff, for the
petitioners.
H. D. Banarjee, R. Ganapathy lyer, R. H. Dhebar and S. P.
Nayyar, for respondents Nos. 1, 3 and 4.
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.
The Judgment of the Court was delivered by
Vaidialingam, J. In this writ petition, under Art. 32 of the
Constitution, the petitioners challenge the constitutional
validity
67
of the Bombay Town Planning Act, 1954 (Bombay Act XXVII of
1955) (hereinafter called the Act), as originally framed,
and also after its amendment, by the Bombay Town Planning
(Gujarat Amendment and Validating Provisions) Act, 1963
(Gujarat Act LII of 1963) (hereinafter called the Amending
Act). They also challenge and seek to have quashed, all
action and proceedings that have been taken by the
respondents, under the 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. yds. In Wadej Section, again, they owned 14,520 sq.
yds, in survey nos. 106, 3/1, 106/4, referred to as plot no.
195. Both these Sections are within the jurisdiction of the
second respondent herein, the Ahmedabad Municipal
Corporation.
The second respondent, by resolution No. 475, dated August
20, 1959, declared its intention to make a Town Planning
Scheme No. 19 (Memnagar), under s. 22(1) of the Act, in
respect of certain areas of land, which included the above-
mentioned lands of the petitioners. 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.
The petitioners appeared before the said Committee, on
December 2, 1959, and raised certain objections, and also
offered some suggestions for modifying the Scheme. Written
objections were also submitted by the petitioners, on or
about January 9, 1960. to the Town Planning Committee. The
petitioners pointed out that in Usmanpur and Wadej Sections
they owned lands to the extent, approximately, of 70,180 sq.
yds., but in the proposals as contained in the Draft Scheme,
they were expected to get only 19,087 sq. yds. and, as such,
they stood to lose nearly 72 % of their lands. They also
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pointed out that they had been made liable to pay a heavy
contribution of Rs. 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.
68
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 June 23, 1960. The peti-
tioners, again, submitted the same objections and
suggestions, which they had placed for consideration, before
the Town Planning Committee. After considering the
objections and suggestions made by the petitioners, the
second respondent forwarded the Draft Town Planning Scheme
to the third respondent, the, State of Gujarat, under s. 2 8
( 1 ) of the Act. The third respondent, again, sanctioned
the said Draft Scheme, under S. 28(2) of the Act and also
appointed a Town Planning 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 objections and suggestions which they
had placed before the Town Planning Committee at the earlier
stage, and before the second respondent, later.
In the Draft Scheme prepared by the second respondent, and
sanctioned by the State of Gujarat, the petitioners’ lands,
survey nos. 41/1, 41/2, 5111, 51/2 (being plot no. 22) and
survey no. 43 (being plot no. 22A) were shown as item no.
18, and lands, survey nos. 106, 3/1 and 106/4 (plot no. 195)
were shown as item no. 163. The Town Planning Officer
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 Rs. 37,556/-and of the
new plots nos. 32, 34 and 43, was Rs. 14,315/-and that, in
consequence, the petitioners were entitled to apayment of
compensation, under s. 67, in the sum of Rs. 23,241/-. The
notice further stated that the value of plots nos. 32, 34
and 43, after taking into account the improvements in the
Scheme, was Rs. 1,35,590/-, and, after deducting the price
of those plots, without reference to the improvements, viz.,
Rs. 14,315/-, the increase, under s. 65 of the Act, was Rs.
1,21,275/-. The petitioners were therefore liable to pay a
contribution, under s. 66, at the rate of 50% on the
increment, viz., Rs. 60,638/-; and after giving credit to
the petitioners, in the sum of Rs. 23,241/-, they were
called upon to pay a sum of Rs. 37,397/-.
69
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 Rs.
7,260/-. By virtue of these two notices, the petitioners
were being allotted fresh plots of an extent of 19,087 sq.
yds., and they were called upon to pay a sum of Rs. 30,133/-
, as their share of contribution, and they were also
required to furnish their objections or suggestions, within
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the time specified. The petitioners filed their written
objections to the proposals contained in the said two
notices; and they also appeared on the dates mentioned in
the notices and reiterated the matters contained in their
written objections.
The first respondent herein, the 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 Rs.
8,222/-. The petitioners were also informed that the
calculation of increment of the value of 20,183 sq. yds
allotted to them, under s. 65, was Rs. 1,08,483/- and, at
the rate of 50%, as per s. 66 of the Act, they were liable
to pay a contribution of Rs. 54,241/-. After adjusting the
value of the lands, of Rs. 8,424/, the net contribution
payable by the petitioners was stated to be Rs. 45,817/-.
Similarly, in the second communication, the petitioners were
informed of the allotment of final plot no. 94, measuring
15,375 sq. yds, as against plot nos. 22A and 195 measuring
in the aggregate 32,307 sq. yds. 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
Rs. 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 Rs. 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 Rs.
32,672/-. Adjusting the sum of Rs. 4,622/-. being the
compensation payable to the petitioners, their net
liability, as contribution, was fixed in the sum of Rs.
28,050/-.
The final position, under these two notices, was that the
petitioners were getting land of an extent of 35,558 sq.
vds., as against the original extent of land of 70,1 80 sq.
yds., and they had to pay a sum of Rs. 73,867,/- as
contribution.
The petitioners preferred appeals to the Board of Appeal,
under s. 34 of the Act. The Board of Appeal reduced the
70
increased value of 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 Rs. 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 mentioned
above.
The main contentions raised by Mr. B. Sen, learned counsel
for the petitioners, are: (i) The State Legislature was not
competent to pass the Act as the subject, dealt with under
the Act, is not covered by any of the entries in List 11, or
List 111, of the Seventh Schedule to the Constitution. (ii)
Even assuming that the State Legislature could pass the Act
in question, nevertheless, the provisions regarding the levy
of contribution towards the cost of the Scheme and all other
matters 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
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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 was competent to pass the Act in question. In
particular, he supports the competency of the Legislature to
enact the measure in question, on the basis of Entries nos.
6 and 18 of List II, and Entry no. 10 of List 111, of the
Seventh Schedule. Counsel also points out that a local
authority, with a view to achieve a systematic and proper
planning, providing amenities like water-supply, drainage,
roads, etc., has been empowered to go in for a town planning
scheme. After providing for these amenities, 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 for which a planned development scheme is framed.
As far as possible, each owner of land is given a new plot,
though it may not be of the same extent or in the same area,
And, in exceptional cases, when the owner loses a holding
alto-ether, he is awarded cornpensation.
71
By reference to the Act and the rules framed thereunder,
counsel pointed out that elaborate provisions have been made
as to how the local authorities, in framing the Scheme, had
to function. as also how the Town Planning Officer, 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 officer of the status
of a District Judge. Principles had also been laid down by
the Act regarding the fixing of valuation of the original
plots and the -reconstituted plots and for fixing the amount
of contribution payable by parties. Payment of contribution
was to be in easy instalments. None of the fundamental
rights of the petitioners, according to Mr. Banajee, bad
been affected.
These contentions of the State have been supported by Mr.
Purshottam Tricumdas, learned counsel appearing for the
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, 1915 (Bombay Act I of 1915), which has been re-
pealed by s. 90(1 ) of the Act. The object of the 1915 Act
is stated to be ’to provide for the making and execution of
town planing schemes’. The preamble to the said legislation
stated that it was found expedient that the development of
certain areas should be regulated with the general object of
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securing proper sanitary conditions, amenity and convenience
to the persons living in such areas and in neighbouring
areas. We only refer to the 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
Amend-
72
ing Act of 1963. The Act is a legislation to consolidate
and amend the law for the making and execution of town
planning schemes, and, in order to ensure that town planning
schemes are made in a proper manner and their execution is
made effective. Sub-sections (2), (4), (6) and (9) of S. 2,
define the expressions ’development plan’, ’local
authority’, ’plot’ and ’reconstituted plot’. In particular,
the expression ’reconstituted plot’ means a plot which is in
any way altered by the making of a town 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. Section 4 provides for the local
authority making a declaration of its intention to prepare a
development plan, before carrying out a survey for the
purpose of preparing the said plan, and a copy of the said
declaration is to be sent to the State Government for
publication in the Gazette. It also .provides for the
declaration being published in the prescribed manner and for
inviting suggestions from the public within two months of
the date of publication. A copy of the development plan is
to be sent 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
authority considering any suggestions that may be made to
such development plan, by any member of the public, if those
suggestions are communicated in writing, within two months
from the date of publication. Section 10 gives power to the
State Government, after consulting the Consulting Surveyor,
to sanction the development plan submitted to it by the
local authority, either without modification or subject to
such modification as it considers necessary. The sanction
of the State Government has to 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
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owners concerned.
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Chapter III, comprising ss. 18 to 20, deals with the making
of and the contents of a town planning scheme. Section 18
provides for a local authority, subject to the provisions of
the Act, or any other law for the time being in force,
making one or more town planning schemes for the purpose of
implementing the proposals contained in the final
development plan. The town planning scheme can provide for
any of the matters mentioned in cls. (a) to (1) referred to
in sub-s. (2) of s. 18. 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 for the purpose of making or executing any town
planning scheme.
Sections 21 to 30, which occur in Chapter IV, deal with the
declaration of intention to make a scheme and the making of
a draft scheme. A Town Planning Scheme, under s. 21, may be
made, in accordance with the provisions of the Act, in
respect of a land which is in the course of development, or
is likely to be used for building purposes, or is already
built upon. Section 22 authorises a local authority to
declare its intention to make 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 within twelve months of its declaration
of intention and publish the same in the prescribed manner.
Section 24 gives power to the State Government, in the
circumstances mentioned therein, to require a local
authority to make and publish a draft scheme and send it to
the Government for approval. Section 25 specifies the
various particulars which a draft scheme should contain
Section 26 provides that in the draft scheme, the size and
shape of every reconstituted plot is to be determined in
such a manner 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-
L4 Sup. Cl/67-6
74
constituted plot by the transfer, wholly or partly, of the
adjoining lands; for allotting a plot to any owner
dispossessed of land in furtherance of the scheme and for
transfer of the ownership of a plot from one person to
another. It may be stated, at this stage, that, as wilt be
seen from sub-cl. (d) of s. 26(2), the intention of the Act
appears to be that the Town Planning Scheme should, as far
as possible, make the provisions for allotment of plots, to
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owners, who are being dispossessed of their property.
Section 27 relates 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 affected by
such scheme and make an application to the State Government
for sanctioning the same. Sub-s. (2) provides for the State
Government, after making such enquiry as it thinks fit and,
after consulting the Consulting Surveyor, sanctioning the
Scheme with or without modifications; and the sanction is to
be published in the State Gazette. Sub-s. (3) makes it
obligatory when the State Government sanctions the scheme,
to state in the notification itself, about the place and
time the draft scheme 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 duties of the
Town Planning Officer. He is to act in accordance with the
prescribed procedure, and decide the various matters
mentioned in cls. (i) to (xiv) of S. 32 (1 ). Among other
matters, the Town Planning Officer has to fix the difference
between the total values of the original plots and the total
of the values of the plots included in the final scheme;
estimate the portion of the sums payable as compensation on
each plot used, allotted or reserved for a public purpose or
purpose of the local 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
75
to be levied on each plot included in the final scheme;
determine the amount to be deducted from, or added to, as
the case may be, in the contribution leviable from a person
and provide for the total or partial transfer of any right
in an original plot to a reconstituted plot or provide for
the extinction of any right in an original plot.
Section 33 makes the decision of the Town Planning Officer.
rendered under s. 32(1), final and conclusive, except in
matters arising out of cls. (v), (vi), (viii), (ix), (x) and
(xiii) of sub-s. (1) of s. 32. Section 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 two Assessors, the President
being the Principal Judge of the City Civil Court in Greater
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Bombay, or such other Judge of the said Court as may be
appointed by the State Government, and elsewhere, the
District Judge. Section 35 provides for the appointment of
fit and proper persons as Assessors, who are to sit with the
President to constitute the Board of Appeal to decide an
cls. (v), (vi), (viii), (ix) (x) (xiii) of s. 32(1).
Section 40 provides for the Town Planning Officer being
required to modify 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
splitting up of schemes into sections and preliminary
schemes. Section 3 lays down the effect of a final scheme,
and states that when it has come into force, all lands
required by the local authority, unless otherwise provided,
should vest in the local authority absolutely free from all
encumbrances and all rights in the original plots which have
been reconstituted being determined and the reconstituted
plots becoming subject to the rights settled by the Town
Planning Officer.
Chapter VII consists 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
76
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 estimate that is
to be made of the value of the original plots and the value
of the plots included in the final scheme, is to be on the
market value at the date of the declaration of intention to
make a scheme, without reference to improvements contem-
plated in the scheme. The estimate of the increment that
accrued in respect of each plot included in the final scheme
and which is to be fixed by the Town Planning Officer, under
S. 32(1) (viii), is again to be done in accordance with the
provisions of s. 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,have regard
to these provisions when fixing the proportion of
contribution of a plot included in the final scheme under S.
32(1)(ix). Again, in determining the amount to be deducted
from, or added to, . the contribution leviable from a person
under s. 32 (1) (xi), the provisions of s. 67 will have to
be applied. The total or partial transfer of right in an
original plot to a reconstituted plot, as well as the
extinction of any right in an original plot, which has to be
decided by the Town Planning 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
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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.
Chapter IX deals with various miscellaneous matters.
Section 87 provides for rules being made by the State
Government for carrying out the purposes of the Act; and,
under sub-section (2) the State Government has got the power
to make rules in respect of the various matters mentioned in
clauses (a) to (w).
The Act was amended, with retrospective effect, by the
Amending Act of 1963.
Section 3 of the Amending Act has deleted the original
clause (1)of s. 18 and substituted a new clause in its
place. Claus-.
77
(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 Scheme relates, has not been
prepared, published or sanctioned before the Town Planning
Scheme was sanctioned or continued.
One of the contentions advanced before us, by learned
counsel for the petitioners, was that the Town Planning
Scheme which is under attack, has been framed without
previously complying with the provisions of Chapters 11 and
III of the Act and, therefore, the entire proceedings are
illegal and void. But this contention, in our opinion, has
not been, rightly, pursued further, 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 material provisions of
these rules.
Rule 3 relates to the publication of the declaration, under
s. 4. Rule 4 deals with the publication of the development
plan. Rule 12 relates to publication of the -declaration
under s. 22. Rule 13 deals with the meeting of owners of
land and formulating of tentative proposals. Rule 14 deals
with the publication of draft schemes under s. 23. Rule 17
enumerates the various particulars to be incorporated in a
draft scheme, apart from the particulars specified in cls.
(a) 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, who may
be affected by the scheme. They provide for objections
being filed, and their being heard by the authorities
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concerned. The rules also deal, elaborately with various
other matters relating to the scheme, dealt with by the Act.
78
The first question that arises for consideration is
regarding the competency of the State Legislature to enact
the statute in question, According to Mr. Sen, learned
counsel for the petitioners, the Act provides for transfer
of rights, from one person, in a plot originally 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 which also there is no power to
be found in any of the Entries in List H or List 111.
The State seeks to justify the competency of the
Legislature, relying upon the Entries Nos. 6 and 18 of List
11 and Entry No. 20 of List III, of the Seventh Schedule.
Having due regard to the scheme of the Act as well as the
provisions contained in it, in our opinion, the competence
of the State Legislature to enact the same can be rested
either on Entry No. 18 of List II, or on Entry No. 20 of
List III, of the Seventh 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(1).
"It is well-settled that these heads of
legislation should not be construed in a
narrow and pedantic sense but should be given
a large and liberal interpretation".
Further, in Navinchandra Mafatatlal v. The Commissioner of
Income-tax, Bombay City(2), this Court expressed the rule of
interpretation, as follows :-
"The cardinal rule of interpretation, however,
is that words should be read in their
ordinary, natural and grammatical meaning
subject to this rider, that in construing
words in a constitutional enactment conferring
legislative power the most liberal
construction should
(1) [1959] Supp, 1 S.C.R. 489,496.
(2) [1955] 1 S.C.R. 829,836.
79
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
Government of India Act, 1935, which was more or less
substantially, in terms of Entry No. 18 of List II of the
Seventh Schedule to the Constitution. Their Lordships of
the Privy Council concluded that Item 21 relating to land,
would include mortgages as an incidental and ancillary
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subject. This Court, in referring to that decision,
observed at p. 755 :
’Their Lordships observed that Item 21 aforesaid, forming a
part, as it did, of the Constitution, should on ordinary
principles, receive the widest construction, 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 include
general rights like full ownership or
leasehold or all such rights. ’Rights over
land’ would include easements or other
collateral rights, whatever form they might
take. Then follow words which are not words
of limitation but of explanation or
illustration, giving instances which may
furnish a clue for particular
matters........".
The various aspects dealt with in the Act, in question, can
be considered to deal with ’land’, and, accordingly, the
competency of the State 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
(1) [1959] Supp. 1 S.C.R. 748, 756.
(2) L.R. 741.A. 12.
80
planning has both social and economic aims.
Socially, successful Planning tends to make
people’s lives happier because it results in a
physical environment which conduces to health,
which allows convenient and safe passage from
place to place, which facilitates social
intercourse and which has visual
attractiveness. The economic results of good
Planning also, of course, conduce to increased
happiness, but not quite so directly. A
proper spatial relationship between the
communities in a region and the constituent
parts of a town, compactness of development,
and an efficient arrangement of communication
routes all result 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 Encyclopedia Britannica, Vol. 5, p. 815 "City Planning"
is stated to mean :
"the guidance of the growth and change of
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urban areas. As such, it is aimed at
fulfilling social and economic objectives
which go beyond the physical form and
arrangement of buildings, streets, parks,
utilities and other parts of the urban
environment. City planning takes effect
largely through the operations of government
and requires the application of specialized
techniques of survey, analysis, forecasting
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 Act of 1915 was passed with a view to
regulate the development of certain areas with the general
object of framing proper schemes for the healthy, orderly,
development of the area in question and it is, with a view
to achieve this purpose
81
that a very elaborate procedure and machinery has been pres-
cribed in the Act. Therefore, the contention of learned
counsel for the appellant that the State Legislature was not
competent to enact the statute, in question, cannot be
accepted.
The further contention 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 to be calculated. On these grounds, counsel
points out, the fundamental rights guaranteed to his
clients, under Arts. 14, 19 and 31 of the Constitution, have
been infringed.
On behalf of the State, it is pointed out that in view of
the Proclamation of Emergency which is in operation, the
petitioners are not entitled to claim any fundamental rights
under Art. 19 of the Constitution. Alternatively,. it is
pointed out that, in any event, having due regard to the
various provisions of, the Act and 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 restrictions on the exercise of the
rights conferred on the petitioners under Art. 19(1)(f).
The principles to be borne in mind in applying Arts. 14 and
19, of the Constitution are now well settled. A fundamental
right to acquire, hold and dispose of property, can be
controlled by the State only by making a law imposing, in
the interest of the general public, reasonable restrictions
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on the exercise of the said right. Such restrictions on the
exercise of a fundamental right shall not be arbitrary, 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. it is seen that the
petitioners, as stated earlier, have been allotted, under
the Scheme, a smaller extent of land and they have also been
directed to pay
82
certain amounts as their share of contribution. But, having
due regard to the scheme of the Act and the object sought to
be achieved, such results are inevitable. At every stage,
from the be,-inning to the end, we have already indicated,
the Act and the Rules, make very elaborate provisions
regarding the formalities to be gone through, by the 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 suggestions. The procedure to
be adopted by the Town Planning Officer, in the matter of
giving his decisions, on the various aspects referred to in
s. 32, has been not only indicated in that section, but also
provided for, under the Rules.
It is also seen, from the affidavit of the petitioners them-
selves, that at all relevant stages, they have filed
objections or suggestions before the appropriate
authorities. Nor are we impressed with the contention
advanced on behalf of the Petitioners that there has 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. 64, 65, 66, 67 and 68,
respectively. Those sections have also been referred to by
us earlier, and they give very clear indication as to what
matters are to be adverted to by him, when a matter has to
be decided in accordance with those sections.
It is also seen from cl. (e) of s. 26 (2 ) of the Act, that
the primary intention in a draft Town Planning Scheme is to
allot a plot to any owner dispossessed of land. With
reference to very, few people, to whom it may not be
possible to allot any land, 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
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Judicial Officer of the stand-
83
ing of a District Judge. The procedure to be adopted by
that Board is also clearly indicated in the rules. It is,
after all-these matters are gone through, that ultimately,
the State Government sanctions the final Scheme.
Therefore, having due regard to the substantive and proce-
dural aspects, we are satisfied that the Act imposes only
reasonable restrictions, in which case, it is saved under
Art. 19(5) of the Constitution. The considerations referred
to above will also ,.how 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 deprivation. We are not satisfied that the
petitioners’ grievance is well-founded in this regard.
Though the petitioners may have originally owned larger
extents of land, in different areas, which may or may not be
fit for building purposes, there can be no controversy, that
the reconstituted plots, though of a lesser area, have a
higher value, as building sites, in view of the various
improvements and amenities provided under the Town Planning
Scheme. What parties, like the petitioners, may liave lost
in actual area of lands, can certainly be considered to have
been more than sufficiently compensated by the increased
value of the reconstituted plots. There is no question of
any deprivation of property, therefore, so as to attract.
Art. 31.
The petitioners make a grievance that they have to pay
fairly large amounts by way of contribution to the Scheme.
No doubt, the petitioners’ stand appears to be that the
amount collected or demanded is really a tax, or fee, at any
rate, which also the local authority has no right to ask
for. Here again, the matter will have to be approached in
an entirely different way. The amount that the petitioners
have been asked to contribute is only towards the cost of
the Scheme, which has to be incurred by the local authority.
As to how exactly that contribution is to be worked out and
the proportion in which the plots are to bear that burden,
have all been indicated in the Act. Therefore, the
liability of the petitioners to pay contribution has to be
upheld, once we come to the conclusion that the Act, as a
whole, will have to be sustained.
Both the contentions of the petitioners fail, The writ
petition. is, accordingly, dismissed with costs of the
respondents, one set.
V.P.S. Petition
dismissed,
84