Full Judgment Text
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PETITIONER:
MUNICIPAL CORPORATION FOR GREATER BOMBAY AND ANR.
Vs.
RESPONDENT:
ADVANCE BUILDERS (INDIA) PVT. LTD. & OTHERS
DATE OF JUDGMENT25/08/1971
BENCH:
PALEKAR, D.G.
BENCH:
PALEKAR, D.G.
SIKRI, S.M. (CJ)
RAY, A.N.
CITATION:
1972 AIR 793 1972 SCR (1) 408
1971 SCC (3) 381
CITATOR INFO :
D 1972 SC 935 (8)
R 1976 SC2243 (23)
ACT:
Town Planning Act, 1954, ss. 51, 53, 54 and 55-Duty of
Corporation to remove unauthorised huts on allotted private
plots.
Practice and Procedure-Writ of mandamus issued by High
Court Interference by Supreme Court.
HEADNOTE:
In August 1958, the State Government sanctioned a final town
planning scheme-The Bombay Town Planning Scheme, Santa Cruz,
No. VI and directed that the scheme should come into force
from 1st January 1959. As part of the scheme there was a
Redistribution and Valuation Statement and to the Statement
some Notes were appended. Note 11 provided that ’all huts,
sheds, stables and Such other temporary structures including
those which do not conform to the regulations of the scheme
are required to be removed within one year from the date the
final scheme comes into force.’ In pursuance of the scheme
plots were allotted, Ind the respondents became the owners
of certain plots. Huts, sheds and stables had been built on
those plots by slum dwellers., Since the appellant-
Corporation took no action for implementing the scheme, the
respondents, from whom betterment charges were being
recovered by the appellant, called upon the appellant to
implement it by removing the Slums, etc., and to provide
roads and drains as directed in the scheme. The appellant
however, remained inactive, and the respondents filed a
petition for the issue of a mandamus to the appellant and
the High Court allowed the petition.
In appeal to this Court, on the questions : (1) Whether the
appellant was bound in law to remove the structures out the
private plots of the respondents in so far as they
contravened the Town Planning Scheme, and (2)whether a writ
of mandamus could issue at the instance of the respondents
when they had collected rents from the Occupants of the hut-
ments, etc.
HELD : (1) Under s. 51(3) of the Town Planning Act, 1954,
the final scheme as sanctioned by the Government has the
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same effect as if it were enacted in the Act. The scheme
and its regulations must, therefore. be read as supplemental
to the Act., Under s. 53, all rights in the original plots
of the private owners would determine, and if, in the
scheme, reconstituted or final plots are allotted to them,
they shall become subject to the rights settled by the Town
Planning Officer in the final Scheme. The fact that the
final plots coincided with the original plots of the)
private owners would not make any difference. Under s. 54
the local authority has to see whether any person is
occupying any land in disregard of the rights determined
under the scheme, and if he does so, he is to be summarily
evicted by the local authority. Under s. 55(1)(a) every
building ,or work which is in contravention of the town
planning scheme, wherever it may be in the area under the
scheme, Could be removed, Pulled down ,or altered by the
local authority which-alone is named as the authority for
that purpose. [414 D-E; 415 A-B, C-D. H; 416 F-F; 417 G]
409
In the present case, note 11 refers not merely to huts,
sheds, stables which do not conform to the regulations of
the scheme, but also to all huts, sheds, stables and such
other temporary structures; and whosoever the owner or
occupant may be, he is required to remove it within one
year from the date the final scheme came into force.. Hence,
if the owner or occupant did not so remove he would be
contravening the provisions of the scheme and thereupon the
local authority will have the power under s.55 (1) (a) to
remove or pull them down. The note takes note of the fact
that the occupants of the hutments will be dishoused and
makes provision for allotment of land to such dishoused
persons. [416 F; 417 B-C]
Therefore, it is the primary duty of the Corporation as the
local authority to remove all offending huts, etc., in the
whole area under the scheme and not merely from those areas
which are allotted to the Corporation. That the respondent
could, by having recourse to law, eject the slum dwellers
and remove their huts would not be a relevant consideration
since the duty is imposed by the Act on the appellant..
Further, there is no provision in the Act which requires
owners of the plots to, take action against the hutment
dwellers. [419 D-E; 421 F-G]
The Maharashtra Regional and Town Planning Act. 1966, which
came in to force during the pendency of the petition in the
High Court has provisions corresponding to the 1954-Act
which are practically of the same content. Hence the
position is the same under the 1966-Act also.
[419 E-F, G-H; 420 C-D]
(2) Since development and planning is primarily for the
benefit of public, the Corporation is under an obligation to
perform its duty in accordance with the provisions of the
Act. A mandamus may hence be, issued to the appellant
ordering that to be done which the statute requires to be
done. [420 E-F]
In the present case, the High Court exercised its discretion
in directing the issue of the writ and this Court, in appeal
by special leave, will not ordinarily question that
discretion. The mere fact that the owners of the plots
received some amounts from the hutment dwellers by way of
compensation or rent would not import any disqualification
for issuing a mandamus at their instance. [421 A, F]
Queen v. The Church Wardens of All Saints, Wigan, (1875-76)
1 A.C. 611 and Queen v. Garland, (1869-70) 5 Q.B. 269,
referred to.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1121 of 1970.
Appeal by special leave from the judgment and order dated’
April 24, 1969 of the Bombay High Court in Appeal No. 2 of
1967.
Niren Den, Attorney-General, M. C. Bhandara, P. C Bhartari,
J. B. Dadachanji, O. C. Mathur and Ravinder Narain., for
the appellants.
S. V. Gupte, S. J. Sarabjee, B. R. Agarwala and A. J.
Rana,, for respondent no. 1.
Sharad Monohar and Urmila Sirur, for the interveners.
410
The Judgment of the Court was delivered by
Palekar. J. This is an appeal by special leave from an
Order of the High Court of Bombay dated 24th April, 1969 in
Appeal No. 2 of 1967, substantially confirming the order
passed by a single Judge of that Court in Writ Petition No.
474 of 1965. The appellants before this Court are the
Bombay Municipal Corporation and the Municipal Commissioner
of Bombay, and the respondents are the owners of 41 final
plots Nos. 106 to 116 and 118 to 147 under the Bombay Town
Planning Scheme, Santacruz VI.
The area under the Town Planning Scheme, with which we are
now concerned, originally fell within the municipal limits
of the Bandra Municipal Committee. That Committee, by a
resolution dated 15th June, 1948, declared its intention to
frame a Town Planning Scheme under section 9(1) of the Town
Planning Act, 1915. Thereafter, the Municipal Committee was
abolished and the area of that municipality was absorbed
within the limits of the Bombay Municipal Corporation. The
Corporation, which. for the purpose of the Act, now became
the local authority. applied to the Government, and on 7th
May, 1951, the Government of Bombay sanctioned the making of
the Scheme. On 30th April, 1963, a draft scheme was,
prepared and published as required by the Act and it was
duly sanctioned by the Government on 6th May, 1954. On 17th
August, 1954, an Arbitrator was appointed to finalize the
scheme and the Arbitrator formulated the final Scheme and
published the same in the, Official Gazette, forwarding, at
the same time, the Scheme to the President of the Tribunal
appointed under section 32 of the Act. In the meantime, the
Town Planning Act, 1915 was replaced by the Town Planning
Act, 1954 which came into force on 1st April, 1957. Under
section 90 the new Act, the final Scheme already formulated
was adopted for continuance and implementation. Finally, on
21st August, 1958, the final Scheme was sanctioned by the
Government which directed that the Scheme should come into
force from 1st January, 1959.
The Scheme, as already stated, was known as the Bombay Town
Planning Scheme, Santacruz No. VI and covered an area .of
about 160 acres divided into two parts by the Chodbunder
Road which ran from south to north. We are not concerned
here with the western part. We are concerned with the
eastern part, the total area of which was about 54 acres. A
part of this area belonged to the N. J. Wadia Trust. In a
Trust Petition made to the High Court, a Receiver was
appointed on 8th February. 1948 of this trust property. It
appears that unauthorised huts, sheds and stables had been
built in this area and the whole of it
411
was full of slums, the removal of which was one of the
objects of introducing the Town Planning Scheme. As the
Arbitrator has stated in his Final Scheme, :
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"The Final Scheme as now drawn up provides for
the construction of new roads with necessary
storm-water drains on the sides of the roads,
certain public sites within the area such as
School, Playground, Market, Maternity Home
etc. The construction of new roads, the
provision of public sites and the removal of
slums will provide for the development of this
part of the Suburb on proper lines."
In pursuance of the Scheme, the part of land, which belonged
to N. J. Wadia Trust and which was now in the possession of
the Receiver, became a part of the Scheme and, under the
Scheme, a number of final plots were allotted to the
Receiver. On 31st July, 1962, the Receiver transferred a
total area of 69,625 sq. yards comprised in 41 final plots
being Nos. 106 to 116 and 118 to 147 to respondents 1 to 3
and one Cardi. Cardi sold his plots in due course to
respondents 4 and 5. So, between the five respondents, they
became the owners of the above 41 final plots.
As already noted, the Scheme came into force on 1st January,
1959 and, though, under the Scheme, a period of 2 to 3 years
had been allowed for the purpose of implementing the Scheme,
no action was taken by the Corporation, perhaps due to the
resistance offered by the slum-dwellers. The respondents,
from whom the betterment charges, etc. were being recovered
by the Corporation, called upon the Corporation to implement
the Scheme by removing slums, sheds and temporary structures
and also to provide roads and drains as directed in the
Scheme. The Corporation, however, remained inactive and,
hence, respondents 1 to 3 filed Writ Petition No. 474 of
1965 on the Original Side of the High Court on 13th October,
1965.By this petition, respondents 1-3 prayed to the Court :
(1) to issue a writ of mandamus or a writ in
the nature of mandamus against the appellants
directing them to construct the roads and
drains as indicated in the Town Planning
Scheme and to complete the same for use within
such time as may be fixed by the Court, and
(2)to issue a writ of mandamus or any other
appropriate writ directing the appellants to
remove all the huts. sheds, stables and
temporary structures from the 41 plots
referred to above.
412
The learned Judge held that, under the Town Planning Act and
the Scheme, it was the primary responsibility of the
Corporation, which was the local authority, to implement the
Scheme and, accordingly, the writs as prayed were
substantially granted. In appeal, the Appellate Bench of
the High Court confirmed the order of the learned Judge with
only minor variations. Hence, the present appeal.
The controversy between the parties has been narrowed down
in this Court. The learned Attorney-General, who appeared
on behalf of the appellants, did not dispute that, so far as
the roads and drains are concerned, it was-the primary
obligation of the Municipal Corporation to provide the same
in accordance with the Scheme. He also agreed that, if
there were any unauthorised structures, huts, sheds and the
like on any part of the plots which vested in the
Corporation for a public purpose, the same were liable to be
removed by the Corporation. His chief contention, however,
is that the Corporation owed no duty to remove the un-
authorised structures situated in the private plots of the
owners who, in his submission, were solely responsible to
remove them. In any event, he further submitted, since the
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petitioners and their predecessors had authorised these
structures and collected rent from the owners or occupants
of these structures, a writ of mandamus at their instance
should not, in the discretion of the Court, be granted.
The point of substance in this appeal is whether the Munici-
pal Corporation, as the local authority under the Act owed a
duty to remove the unauthorised structure, even though those
structures were on private final plots of the respondents.
That the respondents could, by having recourse to law, eject
the slum dwellers and remove the huts and structures would
no,- be a relevant consideration if, under the Act and the
Scheme, the duty was imposed on the local authority. The
Scheme had been framed with a view to clear the area of
slums. In fact, Note 11 attached to the Redistribution
Statement under the Scheme directs that "all huts, sheds,
stables and such other temporary structures including those
which do not conform to the regulations of the Scheme, shall
be removed within one year from the date the Final Scheme
comes into force. Persons thus dishoused will be given a
preference in the allotment of land or accommodation in
Final Plot No. 16." We will have occasion to consider this
Note No. 11 at a later stage; but what is to be noted now is
that the slums were to be cleared and the dishoused persons
were to be accommodated in final plot No. 16 which was
specifically allotted to the Corporation.
Before turning to the provisions of the Act and the Scheme
for the determination of the issue before us, it may be
necessary
413
to note here that the writ issued by the learned single
Judge with regard to these huts, sheds and structures was
clarified in appeal by limiting the writ as follows:-
"that the respondents 1 and 2 (the present
appellants) do remove within one year from
today all unauthorised huts, sheds, stables
and other temporary structures standing and
lying on the petitioners’ (the present
respondents) said forty-one final plots."
We asked Mr. Gupte, learned counsel for the respondents, as
to what exactly was meant by the term "unauthorised"-whether
it meant not authorised by the owners of the plots or not
authorised by the Municipal Corporation or something else.
He informed us that the relief that he really wanted was in
terms of section 55 of the Act which gives the power to the
local authority to remove, pull down or alter any building
or other work which contravenes the Town Planning Scheme.
If any of the structures or huts and sheds, etc. which were
situated in these 41 plots did not contravene the Town
Planning Scheme, he did not and could not ask for a writ of
mandamus for the removal of the same. In view of this
submission, the controversy is further narrowed down and the
only question. with which we are now concerned, is whether
the Corporation is bound under the law to remove such of the
structures, sheds and huts situated in the respondents’
plots in so far as. they contravene the Town Planning
Scheme. In our opinion, the Corporation is so bound.
It is not necessary to go through the several provisions of
the Town Planning Act. There can be no doubt that the
Corporation, as the local authority, is wholly responsible
for the preparation and implementation of every development
plan. The preamble shows that the Town Planning Act, 1954,
which was intended to be a consolidating and amending Act
relating to town planning, was enacted with a view to ensure
that Town Planning Schemes are made in a proper manner and
their execution is made effective. It was, therefore,
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necessary to provide that the local authority shall prepare
a development plan for the entire area within its
jurisdiction. By section 3 of the Act, the local authority
is required to carry out a survey of the area within its
jurisdiction within a certain time and publish a development
plan. In due course, such a development plan is sanctioned
by the Government; but, in the meantime, by section 12 of
the Act, stringent restrictions are placed on the property
owners in the matter of development of or construction on
their private properties as soon as the local authority
declares its intention to prepare a development plan. After
the development plan is finally sanctioned by the
Government, the next step is for the local authority to make
one or more Town Planning Schemes as provided in section 18.
The
8--LI340Sup.CI/71
414
rest or the Act is mostly concerned with the preparation of
the Town Planning Schemes and s. 2 9 (1) (a) provides that,
after the local authority has declared its intention to make
a scheme under section 22, no person shall, within the area
included in the scheme, erect or proceed with any building
or work or remove, pull down, alter, make additions to, or
make any substantial repair to any building, part of a
building, a compound wall or any drainage work or remove any
earth, stone or material, or subdivide any land, or change
the user of any land or building unless such person has
applied for and obtained the necessary permission of the
local authority. These restrictions, though very stringent,
are obviously in the interest of the preparation of the.
Town Planning Scheme, because, if structures come up when
the scheme is being prepared, the whole object of town
planning will be frustrated. The Arbitrator appointed under
the Scheme has to lay out the roads, the drains and make
provision for public places such as gardens, hospitals and
the like and, if private owners start erecting structures of
more or less permanent nature, the cost of the Scheme might
become prohibitive and the Scheme itself will flounder.
Such is the importance of the Final Scheme as sanctioned by
the Government that, under s. 51(3), the Town Planning
Scheme has the same effect as if it were enacted in the Act.
The Scheme naturally deals with the disposition of the land
in the whole area. Titles are displaced and regulations are
made with directions as to how the whole of the Scheme is to
be implemented. The Arbitrator appointed under the Scheme
has to lay out enacted in the Act.
Against this background, we have to determine the question
in issue before us. The important provisions, bearing upon
the controversy, are sections 53, 54 and 55 of the Act.
Section 53 provides :-
"On the day on which the final scheme comes
into force,--
(a) all lands required by the local
authority shall, unless it is otherwise
determined in such scheme, vest absolutely in
the local authority free from all
encumbrances;
(b) all rights in the original plots which
have been reconstituted shall determine and
the reconstituted plots shall become subject
to the rights settled by the Town Planning
Officer."
It will be seen that all lands in the area which is subject
to the Scheme, to whomsoever they might have originally
belonged,
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415
would absolutely vest in the local authority if, under the
Scheme, the same are allotted to the local authority. As a
necessary corollary to this, all rights in the original
plots of the private owners would determine and if, in the
Scheme, reconstituted or final plots are allotted to them,
the same shall become subject to the rights settled by the
Town Planning Officer in the Final Scheme. The original
plots of one owner might completely disappear, being
allotted to the local authority for a public purpose. Such
a private owner may be paid compensation or a reconstituted
plot in some other place may be allotted to him. This
reconstituted plot may be also made subject to certain other
rights in favour of others as determined by the Town
Planning Officer. In other cases, the original plot of the
owner may be substantially cut down and he may be
compensated elsewhere by being allotted a smaller or a
bigger piece of land in a reconstituted plot. The learned
Attorney-General pointed out that, so far as the present
case is concerned, the final plots coincide with the
original plots of the private owners. That may be so; but
that consideration is irrelevant for a proper construction
of the statute. It is inherent in every town planning
scheme that titles are liable to be displaced and an owner
may get a reconstituted plot which belonged, prior to the
Final Scheme, to some other owner. In such a case, if the
original plot belonging to ’A’ was not encumbered by any.
unauthorised huts and ’A’ is allotted in the Scheme a
reconstituted plot of another, encumbered or littered over
with unauthorised sheds and huts, would it be just to say
that ’A’, who is to be put into possession under the Scheme,
of the reconstituted plot, should take legal action for the
ejectment of the hutment-dwellers ? For aught we know he may
be non-suited on the ground of limitation or adverse
possession. In any case, the Scheme will on the one hand,
put an innocent owner to undeserved trouble and, on the
other, not achieve the object of removing the hutment-
dwellers as speedily as possible, thus frustrating the very
object of town planning. It is not as if such a situation
was not visualised by the Legislature, because the very next
section, viz., section 54 gives ample powers to the local
authority to do the needful. That section says :-
"On and after the day on which the final
scheme comes into force any person continuing
to occupy any land which he is not entitled to
occupy under the final scheme may, in
accordance with the prescribed procedure, be
summarily evicted by the local authority."
All that the local authority has to see for the purpose of
section 54 is whether any person is occupying any land in
disregard of the rights determined under the final scheme
and, if he does so, he
416
is to be summarily evicted by the local authority. Section
55 is more explicit on the question. Sub-section (1) is as
follows:--
"(1) On and after the day on which the final
scheme comes into force the local authority
may after giving the prescribed notice and in
accordance with the provisions of the scheme-
(a)remove, pull down, or alter any building or
other work in the area included in the scheme
which is such as to contravene the scheme or
in the erection or carrying out of which any
provision of the scheme has not been complied
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with;
(b) execute any work which it is the duty of
any person to execute under the scheme in any
case where it appears to the local authority
that delay in the execution of the work would
prejudice the efficient operation of the
scheme."
Sub-clause (a) of the sub-section gives the local authority
power to remove, pull down or alter any building or other
work in the whole of the area included in the scheme if such
building or work contravenes the scheme, or if, in the
erection or carrying out of the building or work, the
provision of the scheme has not been complied with. In
short, every building or work, which is in contravention of
the Town Planning Scheme, wherever it may be in the whole of
the area under the Scheme, could be removed pulled down or
altered by the local authority which alone is named as the
authority for that purpose. For example, the Scheme in this
case, by its Note 11, requires that all huts, sheds, stables
and such other temporary structures, which do not conform
with the Scheme, are liable to be removed within one year of
the Scheme which is regarded under s. 51(3) as part of the
Act. If the owner or occupant of the temporary structure
does not remove the structure within one year, the local
authority is empowered to do that. Sub-clause (b) takes
care of any work which, under the Scheme, any private person
is liable to execute in a certain time. If there is delay
in the execution of the work, the local authority is given
the power to execute the work. The question then would
arise : at whose cost this work is to be executed ? For
that, provision is made in sub-s. (2) which is as follows:--
"(2) Any expenses incurred by the local
authority under this section may be recovered
from the persons in default or from the owner
of the plot in the manner provided for the
recovery of sums due to the local authority
under the provisions of this Act."
417
The expenses incurred by the local authority
in this connection are recoverable from the
person in default, viz., the person indicated
in the Scheme and who has defaulted in
executing the work. To make sure that the
expenses are recovered, sub-.S. (2) makes them
recoverable not merely from the p
erson in
default, but also from the owner of the plot.
Disputes are likely to arise whether any
building or work contravenes a Town Planning
Scheme and, so, provision is made for the same
in sub-section (3) which is as follows :-
" (3) If any question arises as to whether any
building or work contravenes a town planning
scheme, or whether any provision of a town-
planning scheme is not complied with in the
erection or carrying out of any such building
or work, it shall be referred to the State
Government’ or any officer authorised by the
State Government in this behalf and the
decision of the State Government or of the
officer, as the case may be shall be final and
conclusive and binding on all persons."
It will, thus, be seen that section 55 provides a self-
contained code by which buildings and works situated in the
whole of the area under the Scheme are liable to be removed
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or pulled down by the local authority if those buildings or
works contravene the Town Planning Scheme. A proper
implementation of the Scheme would undoubtedly entail
considerable cost, but provision for the same is made in
Chapter VIII of the Act, section 66 of which provides for
the recovery of what are commonly known as betterment
charges. The costs of the scheme are to be met wholly or in
part by a contribution to be levied by the local authority
for each plot included in the Final Scheme calculated in
proportion to the increment which is estimated to accrue in
respect of such plot by the Town Planning Officer. The
whole scheme or the Act, therefore, and especially sections
53 to 55 leave no doubt that it is the primary duty of the
local authority to remove all such buildings and works in
the whole of the area which contravene the Town Planning
Scheme.
The Scheme and the regulations made thereunder must be read
as supplemental to the Act and, when that is done, there is
no room for any doubt whatsoever that the local authority is
entirely responsible for removing the huts, sheds, stables
and other temporary structures which contravene the Town
Planning Scheme. The Scheme gives a statement of works to
be constructed under the Scheme which comprises a number of
roads and the drainage system. The Scheme then specifies
which final plots under the Scheme are reserved for public
or municipal purposes. In the section dealing with the
regulations controlling the development of the area under
the Scheme, the various final plots are
418
mentioned and directions have been given as to how they are
to be utilised. Regulation 6 is as follows :-
"No hut or shed whether for residential user
or otherwise, or temporary moveable shops on
wheels or such other temporary structures
shall be allowed within the area of the
Scheme."
It is possible to construe this regulation as prospective in
operation, because regulation 9 provides that any person
contravening any of the aforesaid regulations or any of the
provisions of the Scheme is liable to be prosecuted and
fined. As a part of the Scheme, there is a Redistribution
and Valuation Statement which shows which are the original
plots, who were the owners thereof, whether those plots were
encumbered or leased out, who the mortgagees and lessees
were, what is the number of the reconstituted or the final
plot allotted to such owners, what contributions have to be
made by the owners and what additions or deductions are to
be taken into account while deciding the contributions. In
the case of some of the final plots, certain rights are
given and liabilities imposed and, in suitable cases,
compensation also is directed to be paid. And, then, to
this Redistribution and Valuation Statement, eleven Notes
are appended which are important Note 1 says that all rights
of mortgagors or mortgagees if any, existing in the original
plots are transferred to their corresponding final plots.
Note 2 deals with the rights of lessors and lessees in the
original plots. By Note 3, all rights of passage hitherto
existing are extinguished. By Note 4, agreements in respect
of original plots are transferred to the final plots. By
Note 5, the tenures of all original plots are transferred to
the corresponding final plots. Note 6 permits the original
plot-owners to remove their detachable material on the plot
if they are deprived of the same. They are required to
remove their wire-fencing, compound wall, sheds, huts or
other structures. They can do so within three months from
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the date on which the final Scheme comes into force, the
idea being that the final plots must be clean plots for
being allotted to another under the Scheme. This permission
under Note 6 has been given not because the local authority
has no power to remove wire-fencing, huts, sheds, etc.; that
power is there as already shown under section 55. But this
is a concession made in favour of the owner. Since the
owner is required to remove himself from this plot, he is
permitted to take away whatever material he could easily
remove. And, then, Note 11, to which reference has already
been made, provides that all huts, sheds, stables and such
other temporary structures including those which do not
conform to the regulations of the Scheme, are required to be
removed within one year from the date the final Scheme comes
into force. The Note refers not merely to huts,
419
sheds, stables which do not conform to the regulations of
the Scheme, but also to all huts, sheds, stables and such
other temporary Structures. Whosoever the owner or the
occupant of the same might be, he is required to remove the
same within one year from the date the Final Scheme comes
into force. This is an important regulatory provision which
has the effect as if enacted in the Act. If the owner or
the occupant of these huts, sheds and stables does not
remove the same within one year from the date this final
Scheme comes into force, he would be contravening the
provisions of the Scheme and, thereupon, the local authority
will have the power under section 5 5 (1) (a) to remove or
pull down these huts, sheds, stables, etc. Note 11 has
taken due note of the fact that, if the huts, sheds,
stables, etc. are demolished, the owners or occupants
thereof will become dishoused. Hence, further provision is
made that persons thus dishoused will be given preference in
the allotment of land or accommodation in Final Plot No. 16
allotted to the Corporation. In other words, it is implicit
in this Note that the Corporation may not hesitate to pull
down or remove these huts and sheds, etc., because provision
is already made for allotment of land in the Corporation’s
Plot. The Note, therefore, indirectly establishes that it
is the primary duty of the Corporation as the local
authority to remove all offending huts, sheds, stables and
temporary structures in the whole area under the Scheme and
not merely from those areas which are allotted to the
Corporation under the Scheme.
Our attention was invited by the learned Attorney-General to
the Maharashtra Regional and Town Planning Act, 1966 which
came into force on 11 th January, 1967. The Act came into
force when the present litigation was pending in the High
Court; but it does not appear that any reference was made to
the provisions of that Act. It is a more comprehensive
legislation with regard to development and planning than the
Bombay Town Planning Act, 1954 to the provisions of which we
have already made a reference. By section 165(1) of the
Maharashtra Regional and Town Planning Act, 1966, the Bombay
Town Planning Act, 1954 is repealed; but, by virtue of sub-
s. (2) of section 165, all Schemes finalised under the
Bombay Town Planning Act, 1954 are deemed to have been
framed under the corresponding provisions of this Act and
the provisions of this Act shall have effect in relation
thereto. The more important provisions of the Bombay Town
Planning Act, 1954, to which a reference has been made by us
above. were sections 53, 54 and 55. The corresponding
provisions in the new Act are sections 88, 89 and 90.
Section 53 consisted of two clauses (a) and (b). They are
the same as the first two clauses (a) and (b) of the
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corresponding s. 88. One% more clause (c) is added which
provides that the Planning Authority shall hand over
possession of the final plots to the owners to
420
whom they are allotted in the final Scheme. The Planning
Authority is the same as the local authority under the
Bombay Town Planning Act, 1954--in the present case, the
Bombay Municipal Corporation. There was no specific
provision in section 53 directing the local authority to
hand over possession of the ,’final plots; but, in our
opinion, that was implicit in the Scheme when the original
plots were reconstituted and the reconstituted plots were
allotted to the owners of the original plots. Clause (c) of
section 88, therefore, merely clarifies what was implicit in
section 53 of the old Act. Section 54 of the old Act
corresponds to sub-s. (1) of section 89 of the new Act.
Sub-s. (2) of section 89 is a new provision which makes it
obligatory upon the Commissioner of Police and the District
Magistrate to assist the Planning Authority in evicting per-
sons from the final plots when there is unlawful opposition
to the same. Section 55 of the old Act corresponds to
section 90 of the new Act and is practically the same in
content. In our opinion, therefore, there is nothing in the
new Act which requires us. to reconsider the above finding.
It is clear, therefore, on a consideration of the provisions
of the Bombay Town Planning Act, 1954 and especially the
sections of that Act referred to above, that the Corporation
is exclusively entrusted with the duty of framing and
implementation of the Planning Scheme and, to that end, has
been invested with almost plenary powers. Since development
and planning is primarily for the benefit of the public,
the, Corporation is under an obligation to perform its duty
in accordance with the provisions of the Act. It has, been
long held that, where a statute imposes a duty the
performance or non-performance of which is not a matter of
discretion, a mandamus may be granted ordering that to be
done which the statute requires to be done (See Halsbury’s
Laws of England, Third Edition, Vol. II, p. 90).
It was, however, contended by the learned Attorny-General
that, after all, a writ of mandamus is not a writ of course
or a writ of right but is, as a rule, a matter for the
discretion of the court. That is undoubtedly the case. It
is pointed out by Lord Hatherley in The Queen v. The Church
Wardens of All Saints, Wigan and Others(1), that upon a
prerogative writ there may arise many matters of discretion
which may induce the Judges to withhold the grant of it-
matters connected with delay, or possibly with the conduct
of the parties; but, as further pointed out by his Lordship,
when the Judges have exercised their discretion in directing
that which is in itself lawful to be done, no other Court
can question that discretion in so directing. In the
present case, the High
(1) [1857-76] 1 A.C. 611.
421
Court has exercised its discretion in directing the issue of
the writ and this Court, in an appeal by special leave, will
not ordinarily question that discretion.
In The Queen v. Garland and Another(1) which was cited by
the learned Attorney-General before us, mandamus was refused
practically on the ground that the petitioners therein had
not come before the Court with clean hands. In that case,
the trustee,-, proved the will of the testator, but not
claim themselves to be admitted to the copyholds, though
they were bound to do so, and called upon the lord of the
manor to admit the infant heir by his guardians. The lord
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refused. If the trustees had done their duty by admitting
to the copyholds, the lord would have been entitled to a
double fine instead of a single fine on the admittance of
the heir. In these circumstances, the Court refused a
mandamus to compel the lord to admit the heir as, in the
opinion of the Court, the effect of granting it would be to
enable the trustees to evade payment of a double fine, and
to commit a breach of trust by not acquiring themselves the
legal estate in the copyholds. Nothing of that nature to
disqualify-the respondents in this case for a writ in their
favour has been pointed out to us. The only submission of
the learned Attorney-General is that so far as the huts,
sheds, etc., which are within the final plots of the
respondents are concerned, they must be ’Presumed to be
therewith the permission of the respondents or their
predecessors-in-title, -specially when it is known that
some fee, compensation or rent was recovered by them from
the owners or occupants of these huts and sheds. It is not
the case that the petitioners, while, on the one hand,
asking for a mandamus against the Corporation, are resisting
the enforcement of the Scheme through the owners and
occupants of the slums on the other. If the owners of these
final plots merely recovered some amounts from the hutment-
dwellers by way of compensation or rent, that act cannot be
regarded as importing any disqualification for the purposes
of mandamus. After all, their’ land was being used by
others and, perhaps, the respondents are also liable to pay
local taxes. We have not been shown one provision in the
whole of the Act which requires the owners of the plots to
take any action against the hutment-dwellers. The Scheme
came into force in 1959 and it is an admitted fact that,
till 1964, nothing at all was done by the Corporation to
implement the Scheme. The respondents served notices on the
Corporation to enforce the Scheme, but, for one reason or
the other, the Corporation merely stalled effective action.
We do not, therefore, think any adequate reasons have been
given for refusing the writ.
In the result, the appeal is liable to be dismissed with
only the following modification in the Appellate Court’s
Order:-
(1) [1869-70] 5 Q.B. 269.
422
For the following words:
"that the respondents 1 and 2 do remove within
one year from today all unauthorised huts,
sheds, stables and other temporary structures
standing and lying on the petitioners’ said
forty-one final plots"
the following should be substituted :-
"that the respondents 1 and 2 do remove within
one year from today all such huts, sheds,
stables and other temporary structures
standing or lying on the petitioners’ said
forty-one final plots as contravene the Scheme
or in the erection or carrying out of which
any provision of the Scheme has not been
complied with."
Subject to this modification in the Order, the appeal is
dismissed with costs.. Since a stay had been granted by this
Court, it would be necessary to allow reasonable time for
compliance by the appellants. The periods already given by
the trial Court, as modified by the Appellate Court, shall
be counted from the date of this judgment.
V.P.S. Appeal dismissed.
423
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