Full Judgment Text
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PETITIONER:
JASWANT SINGH MATHURA SINGH AND ANR.
Vs.
RESPONDENT:
AHMEDABAD MUNICIPAL CORPORATION AND ORS.
DATE OF JUDGMENT01/10/1991
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
SHETTY, K.J. (J)
CITATION:
1991 AIR 385 1990 SCR Supl. (3) 354
1991 SCC (1) 362 1990 SCALE (2)1152
ACT:
Bombay Town Planning Rules, 1955: Rules 21(3) and (4).
Town Planning Scheme- Procedure to be followed by Town
Planning Officer-Compliance with Rule 21(3) and (4) held
mandatory-Non-compliance vitiates the validity of the Town
Planning Scheme- Tenant or sub tenant in possession of a
tenement in the Town Planning Scheme-Held a person interest-
ed and entitled to notice under sub-rule (3) and opportunity
under sub-rule (4)-Purpose of Rule 21(3) and (4)-Explained.
Principle of ’Waiver’ explained.
Administrative Law - Natural justice.
Deprivation of property - Imposition of liability -
Prior notice and opportunity should be provided to affected
person -- Rules 21(3) and (4) of the Bombay Town Planning
Rules, 1955 subserve the principle of Natural, Justice and
the basic concept of fair and just procedure.
’Shall’ - Connotation of - Whether mandatory or directo-
ry - Meaning shall be ascertained in the light of legisla-
tive intent, the context in which it is couched, the conse-
quences it produces and the purpose it seeks to serve.
HEADNOTE:
The appellant was in possession of a plot as a tenant.
Pursuant to Town Planning Scheme framed by the respondent-
Corporation under the Bombay Town Planning Act, 1955 the
said plot was re- constituted i.e. the plot was altered by
the making of the Town Planning Scheme. The respondent was
injuriously affected by the said scheme because it has the
effect of terminating his possession and adversely affected
his business in the demised premises. However, before fina-
lising the scheme the Town Planning Officer neither issued
special notice to the respondent a required under sub-rule
(3) nor provided him an opportunity as provide
227
under sub-rule (4) of Rule 21 of the Bombay Town Planning
Rules, 1955. The appellants filed a civil suit challenging
the action and the Trial Court issued a permanent injunction
restraining the respondent-Corporation from reconstituting
the plot until due procedure was followed.
On appeal by the Corporation a Single Judge of the High
Court allowed the appeal and set aside the decree of the
Trial Court and dismissed the suit. The Single Judge fol-
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lowed the decision of the Full Bench in Dungarlal Harichand
v. State of Gujarat & Ors. (1976) 17 G.L.R., 1152 holding
that the appellants were not entitled to special notice
under sub-rule (3) and opportunity under sub-rule (4) and
2that non-compliance with the said rule does not vitiate the
Planning Scheme. The decision of the Single Judge was con-
firmed in Letter Patent appeal by the Division Bench of the
High Court.
In tenant’s appeal to this Court it was contended on
behalf of the Respondent-Corporation that (i) compliance
with sub-rule 21(3) & (4) was not mandatory; (ii) Since
sub-rule 21 (3) is only an additional advantage It is dis-
pensable and could be waived; (iii) the framing of the Town
Planning Scheme is for the benefit of the residents of the
Local authority as an amenity provided therein to the gener-
al public i.e. construction of General Post Office, the
interest of the general public outweighs the individual
interest. Therefore, sub-rule 21(3) is not mandatory; (iv)
the use of the word ’shall’ in rule 21(3) may be construed
as directory and not as
mandatory.
Allowing the appeal, this Court,
HELD: 1. Under Section 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 sub-tenant in possession
of a tenement in the Town Planning Scheme is a person inter-
ested 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. Accordingly, appellants are entitled to
notice under sub-rule (3) and a
228
reasonable opportunity under sub-rule(4)
thereof.[234H;235A-B;235 E]
2. A conspectus of the statutory scheme brings 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.
At the relevant stages, he is required to issue notice to
the affected person. [234 F-G]
2.1 A reading of s. 32 of the Bombay Town Planning Act,
1955 read with Rule 21(3) makes it abundantly clear that the
Town Planning Officer is to give notice of at least 3 days
in the prescribed manner to the affected persons to submit
objections or views; affected persons are to be given ade-
quate opportunity under rule 21(4) to respond and thereafter
the Officer is to demarcate the area allotted to or reserved
for public purposes or for purpose of the local authority
and the reconstituted plots to be allotted to persons in
ownership with the shares of such persons in common plot
etc. [236 G-H]
3. Rule 21(3) speaks of special notice of at least
three days duration. It is inconsonance with and in compli-
ance of the principles of natural justice. The legislature
thus made a distinction between the general notice envisaged
in sub-rule (1) of Rule 21 and special notice under sub-rule
(3) of Rule 21, which was in addition to the former. [237-C]
3.1 The purposes of clauses (3) and (4) of Rule 21 are
obvious and the consequences that would ensue are self-
evident. The issuance of notice under sub-rule (3) and
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giving of sufficient opportunity under sub-rule (4) are self
evident to subserve the basic concept of fair and just
procedure. These sub-rules subserve the principles of natu-
ral Justice to avoid arbitrariness offending Article 14 and
to be Just and fair procedure satisfying the mandate of
Article 21. [237- C,E]
4. It is settled law that before depriving a
person of his property or imposing any further liability,
the principle of natural justice require prior notice and
reasonable opportunity to him to put forth his claim or
objections. [237-B]
4.1 Since the non-compliance with issuance of notice
and giving of sufficient opportunity contemplated under
sub-rules (3) and (4) of Rule 21
229
injuriously affects the right to property of the owner or
interest of the tenant or sub-tenant, as the case may be, it
shall be construed to be mandatory and not directory. There-
fore, the issuance of special notice of at least three clear
days duration and giving sufficient opportunity to the
person affected to put forth his views of the scheme are
mandatory and non-compliance thereof vitiates the validity
of the final scheme. [237 H; 238 A; 237 E]
Kaushikprasad Chandulal Mahadevia & Anr. v. The
Ahmedabad Municipal Corporation and Ors., (1970) 11 G.L.R.
993; Mohanlal Jesinghbhai v. PJ. PateI, Town Development
Officer, Ahmedabad Municipal Corporation & Ors, (1970) 11
G.L.R. 1035, approved.
Dungarlal Hanchand v. State of Gujarat & Ors., (1976)
17 G.L.R. 1152, disapproved.
5. The appearance of ’shall’ is not conclusive, nor per
se connotes its mandatory contour. Its meaning must be
ascertained in the light of the legislative intent in its
employment, the context in which it was couched, the conse-
quences it produces the result it effected and above all the
purpose it seek to serve, would all be kept in view. From
the fact situation the courts are to cull out the intention
whether the construction to be put up would subserve the
purpose of the legislative intent or tend to defeat it.
Public interest, is always, a paramount consideration. [237
F-G]
6. The principle of Waiver connotes issuance of notice
and non-response thereto. Everyone has a right to waive an
advantage or protection which law seeks to give him. Un-
doubtedly, if a notice is issued and no representation is
made by either the owner, tenant or a sub-tenant, it would
amount to waive the opportunity and such person cannot be
permitted to turn round, after the scheme reaches finality,
to say that :here is non-compliance of sub-rules (3) and (4)
of Rule 21. It would amount to putting premium on dilatory
and dishonest conduct. [238 B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1354 of
977.
From the Judgment and Order dated 4.5.1977 of the Guja-
rat High Court in Letters Patent Appeal No. 114 of 1977.
P.H. Parekh and Ms. Shalini Soni for the Appellants.
230
T.U. Mehta, H.S. Parihar, Kuldeep S. Parihar, Mrs. Manik
Karanawala (N.P.), Mrs. Nandini Gore and Anip Sachthey
(N.P.) for the Respondents.
The Judgment of the Court was delivered by
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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 ques-
tion 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. 2
No. 352/3 (S) No. 163-A-2 from the year 1940 as a directte-
nant 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 pur-
poses. The Town Planning Scheme was formulated by the munic-
ipal corporation 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 challeng-
ing the action. The appellants’ suit was decreed declaring
that final plot Nos. 82 and 83 upon which the structures
were standing with Municipal No. 352/3 and in 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 First Appeal No.
669/76 allowed the appeal alongwith other bunch of appeals
holding that the decision in Dungarlal Harichand v. State of
Gujarat & 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 21. 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.
231
Shri Mehta, the learned Senior Counsel for the respond-
ents 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-rule
(3) of Rule 21 is only an additional advantage, it is not
dispensable. 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. Instruc-
tion of General Post Office. The interest of the general
public 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
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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 redevelopment or improvement of the entire
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 lay saying
that any person for the time being receiving or entitled to
receive ..... the rent or profits of the property in
connection 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 making of a
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 inten-
tion 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 declaration 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
232
more town planning schemes for the area within its jurisdic-
tion or in part 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, "alteration" and "removal of
buildings", bridges and other structures;
(e) "the allotment" or "reservation" of land for roads,
open spaces,
gardens, recreation grounds, school, market, green belts and
dairies,
transport facilities and public purposes of all kinds;
(f) drainage inclusive of sewerage, surface or sub-soil
drainage and sewage disposal;
(g) lighting;
(h) Water supply;
(i) Omitted.
(j) "imposes" sub-section (2) ’conditions and restric-
tions" 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 purposes to which buildings or speci-
fied areas may or not be appropriated, "the sub-division of
plots", the discontinuance of objectionable users of land in
any area in reasonable periods, parking space and loading
and unloading space for any building or the sizes of projec-
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tions and advertisements signs.
(k) & (1) Omitted.
In Chapter IV under sub-sec. (1) ors. 22, the local
authority may by a resolution declares its intention to make
a town planning scheme in respect
of the whole or any part of the land which is in the course
of development
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 notifi-
cation in the official Gazette, shall be approved. Section
25 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 bound-
aries 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 the 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 submis-
sion 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 offi-
cial 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 Offi-
cer 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
notice 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 reconsti-
tuted 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 in-
cluded 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 amount of exemption, if any,
from payment of the contribution of the lands occupied by
religious and charitable purposes. The contribution of the
234
costs in the final scheme is also enjoined to be calculated
and to determine the liabilities etc. as indicated in
Clauses (vi) to (xi). Clause (xii) provides for the total or
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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 empowered 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 Plan-
ning Officer subject to an appeal if any, the State Govt.
under section 34, shall make it final and binds the parties.
The final scheme shall be 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 enti-
tled 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 reallotment on
reconstitution; to reserve the area for public purpose;
determine the compensation; liability of the owner to con-
tribute the amount; to provide amenities etc. At the rele-
vant 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
235
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 tene-
ment in the Town Planning Scheme is a 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 posses-
sion 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
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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 assist-
ance. 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 af-
fected 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 promi-
nent 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 notice 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 interest-
ed in any plot or in any particular comprised
in the scheme, before the Town Planning Offi-
cer,
236
proceeds to deal in detail with the portion of
the scheme relating thereto. Such special
notice shall also be posted at the office of
the Town planning, Officer. Such notice shall
be given in the cases mentioned in clause (i),
(ii) and (iii) of sub-section (1) of s. 32 and
in any other cases where any persons have not
been sufficiently informed that any matter
affecting them is to be considered.
(4) The Town Planning Officer shall give all
persons affected by any particular of the
scheme sufficient opportunity of stating their
views and shall not give any decision till he
has duly considered their representations, if
any.
(5) If during the proceedings, it appears to
the Town Planning Officer that there are
conflicting claims or any difference of opin-
ion with regard to any part of the scheme, the
Town Planning Officer shall record a brief
minute in his own hand setting out the points
at issue and the necessary particulars, and
shall give a decision with the reasons there-
of. All such minutes shall be appended to the
scheme.
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(6) The Town Planning Officer shall record and enter in
the scheme every decision given by him under clauses (i),
(ii), (iii), (vii), (x) and (xii) of sub-section (1) of
section 32. The calculations and estimates required by
clauses (iv), (v) , (vi), (vii), (ix), (x) and (xiii) of
sub-section (1) of section 32 shall be set out and recorded.
(7) The final scheme drawn up by the Town Planning
Officer shall include the particulars specified in rule 17.
(8) The component parts of the scheme shall be so ar-
ranged that they may be readily referred to in connection
with the map and plans.
(9) Omitted.
A reading of s. 32 read with Rule 21(3) makes it abun-
dantly clear that the the Town Planning Officer is to give
notice of at least 3 days in the prescribed manner to the
effected persons to submit objections or views; are to be
given adequate opportunity under rule 21(4) to respond and
thereafter the Officer is to demarcate the area allotted to
or reserved for public purposes or for purpose of the local
authority and the reconstituted plots to be allotted to
persons in ownership with the shares of such persons in
common plot etc. He is also entitled to alter the bound-
aries, allocate certain lands for public purposes, reduce
the size of the existing plots or re-distribute the plots to
the owners etc. in the
237
reconstituted plot. The second stage is the calculation of
the contribution and apportionment thereof among the persons
liable to make contribution. Thus the owner, tenant or a
sub-tenant, as the case may be, is entitled to a notice and
an adequate opportunity to place on record, if he so choses,
his objections or views and the same shall be considered and
action taken thereafter. It is settled law that before
depriving a person of his property or imposing any further
liability, the principles of natural justice require prior
notice and reasonable opportunity to him to put forth his
claim or objections. Rule 21(3) speaks of special notice of
at least three days duration. It is in consonance with and
in compliance of the principles of natural justice. The
legislature thus made a distinction between the general
notice envisaged in sub-rule (1) of Rule 21 and special
notice under sub-rule (3) of Rule 21, which was in addition
to the former.
The purposes of clauses (3) and (4) of Rule 21 are
obvious and the consequences that would ensue are self-
evident. These sub-rules subserve the principles of natural
justice to avoid arbitrariness offending Art. 14 and to be
just and fair procedures satisfying the mandate of Art. 21.
Nonobservance otherwise would render the scheme illegal. No
provision of a statute or Rule would be rendered surplusage
or otiose. The construction of the Rules by the Full Bench
would, however, result in rendering subrules (3) & (4)
surplusage and otiose. Sub-rule (4) postulates that Town
Planning Officer shah give to a person effected by the
scheme sufficient opportunity to state his views and shall
not give any. decision till he duly considers the represen-
tation, if any. The issuance of notice under sub-rule (3)
and giving of sufficient opportunity under sub-rule (4) are
self-evident to subserve the basic concept of fair and just
procedure. Accordingly we hold that issuance of special
notice of at least three clear days duration and giving
sufficient opportunity to the person effected to put forth
his views of the scheme are mandatory and non-compliance
thereof vitiates the validity of the final scheme.
The use of ’shall’ in the given circumstances may be
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construed to be directory but not mandatory as contended by
Shri Mehta. The appearance of ’shall’ is not conclusive, nor
per se connotes its mandatory contour. Its meaning must be
ascertained in the light of the legislative intent in its
employment, the context in which it was couched, the conse-
quences it produces the result it effected and above all the
purpose it seek to serve, would all be kept in view. From
the fact situation the courts are to cull out the intention
whether the construction to be put up would subserve the
purpose of the legislative intent or tend to defeat it.
Public interest, is always a paramount consideration. Since
the non-compliance with issuance of notice and giving of
sufficient opportunity contemplated under sub-rules (3) and
(4) of Rule 21 injuriously affects the right to
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property of the owner or interest of the tenant or sub-
tenant, as the case may be, it shall be construed to be
mandatory and not directory. In this view it is redundant to
burden the judgment with all the decisions cited by either
counsel.
The principle of. Waiver connotes issuance of notice and
non-response thereto. Everyone has a right to waive an
advantage or protection which law seeks to give him/her.
Undoubtedly, if a notice iS issued and no representation was
made by either the owner, tenant or a sub-tenant, it would
amount to waive the opportunity and such person cannot be
permitted to turn round, after the scheme reaches finality,
to say that there is non-compliance of sub-rules (3) and (4)
of Rule 21. It would amount to putting premium on dilatory
and dishonest conduct.
Accordingly, we are of the considered view that the
judgments in Kaushikprasad Chandulal Mahadevia & Anr. v. The
Ahmedabad Municipal Corporation and Ors,, 1970 (11) G.L.R.
993 and Mohanlal Jesinghbhai v. P.J. Patel, Town Development
Officer, Ahmedabad Municipal Corporation * Ors., 1970 (11)
G.L.R. 1035, laid down the law correctly. The finding of the
Full Bench in the first part of its judgment to the effect
that non-compliance with the requirements of sub-rules (3)
and (4) of Rule 21 does not vitiate the scheme is not sound
in law.
It is seen that the appellant has been in possession as
tenant for well over half a century and, therefore, it is
injuriously affected by the scheme which has the effect of
terminating his possession and this adversely affects its
business in the demised premises. Since it is a running
business over the years, the respondent is directed to
provide an alternative premises by allotting a suitable shop
within the city to the appellant; to put it in possession
thereof and until then allow its occupation of demised shop.
In case the appellant does not vacate or creates any ob-
struction in any form in the matter of possession, it would
be open to the respondent to have the appellant ejected
summarily. In this view we decline to interfere with the
scheme. The appeal is accordingly allowed to the above
extent and in other respects the decree of the Courts below
is upheld. But in the circumstances parties are directed to
bear their own costs.
T.N.A. Appeal
allowed.
239