Full Judgment Text
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PETITIONER:
K. L. GUPTA & ORS.
Vs.
RESPONDENT:
THE BOMBAY MUNICIPAL CORPORATION AND ORS.
DATE OF JUDGMENT:
21/08/1967
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
WANCHOO, K.N. (CJ)
BACHAWAT, R.S.
RAMASWAMI, V.
HEGDE, K.S.
CITATION:
1968 AIR 303 1968 SCR (1) 674
CITATOR INFO :
R 1971 SC 474 (6)
R 1979 SC1803 (41)
R 1980 SC 962 (13)
ACT:
Bombay Town Planning Act, 1954, ss. 9, 10, 11, 12 and
13--Whether violative of Articles 14 and 19 of the
Constitution.
HEADNOTE:
The petitioners were owners of certain land in Greater Bom-
bay in respect of which a declaration of intention under
s.4(1) of the Bombay Town Planning Act, 1954, to prepare a
development plan, had been made by the respondent Bombay
Municipal Corporation. They applied to the Municipal
Commissioner, in January 1962, for permission to change the
existing user of their land and for a commencement
certificate under s. 12 to construct factory sheds on a part
of the land, but their application was rejected by the
Executive Engineer, Development Plan. A tentative develop-
ment plan for the area which included the petitioner’s land
was published on January 9, 1964, in which their land was
shown as partly reserved for public roads, partly for
industrial purposes and the rest was marked green. After a
large number of objections and suggestions on the tentative
plan had been received and considered in accordance with the
provisions of s. 9 of the Act, the Municipal Corporation
finally approved the plan on July 2, 1964 and forwarded it
to the State Government for its sanction under s. 10. The
State Government sanctioned the final development plan for
the ward in which the petitioners’ lands were located on
September 14, 1966 after consulting its special Consulting
Surveyor, who scrutinised all the objections received by the
Municipal Corporation and heard the objectors. The final
plan showed that a major portion of the petitioner’s land
was earmarked for a recreation centre.
Although a writ petition filed by the petitioners before the
publication of the tentative development plan against the
rejection of their application for a commencement
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certificate was allowed by the High Court on the ground that
powers of the Municipal Corporation under s. 12 had not been
exercised by an officer prescribed under s. 86, two
subsequent petitions filed by them after the approval of the
final plan by the Municipal Corporation to obtain redesi-
gnation of their land were dismissed.
In the present petition under Art. 32 of the Constitution,
the petitioners claimed that after the reservation of their
land as shown in the tentative plan published on January 9,
1964, its redesignation in the final plan for a recreation
centre was without authority of law and violative of their
rights under Arts. 14 and 19. It was contended, inter alia,
(i) that sections 9 and 10 of the Act were invalid and
unconstitutional in that they empowered the local authority
and the State Government to modify, as a result of
objections received from other persons, a development plan,
against which a particular person may not have objected,
without giving an opportunity to that person to represent
against a subsequent modification by which his interest may
be adversely affected; (ii) that under s. 12 the final
275
and only authority who had the power to grant or withhold
permission to carry on any development work after a
declaration of intention under s. 4(1) was the Municipal
Commissioner; he could, under s. 13, grant or refuse a
commencement certificate at will, there being nothing to
guide him in such a matter before the preparation of a
development plan; even after the preparation of such a plan,
a commencement certificate could be refused arbitrarily and
there was no provision for any appeal from or revision of
the order containing the refusal; and (iii) that by the
combined operation of ss. 4 and 11 (3), the local authority
could easily delay the acquisition of any land designated
for a public purpose under s. 7 of the Act for 14 years and
this constituted an unreasonable restriction on the right to
hold property.
Held: The objections raised as to the invalidity of sections
9, 10, 11, 12 and 13 could not be upheld.
(i) The contention that a person was given no opportunity of
meeting the objections raised by others with regard to the
development plan has no force in the light of the facts
disclosed as to the enormity of the task of finalising the
development plan. If the authorities were to hear all the
parties with regard to all the suggestions made, give them
separate and independent hearings, no development plan could
ever be prepared. The authority was not concerned with
considering the advantages or disadvantages which might
accrue to a particular person or a group of persons owning
lands in different parts of the area concerned, but it had
to go by the larger interest of the population at large and
the generations to come. The affidavits show that nothing
was done haphazardly. Suggestions and objections at all
stages were carefully considered, the assistance of
committees of experts was taken and the plan emerged only
after an immense amount of labour had been bestowed in its
preparation. [297B-D]
(ii) There was enough guidance in the Town Planning Act to
enable the Municipal Commissioner to come to a conclusion as
to whether a particular commencement certificate should be
granted or not and the power exercisable under ss. 12 and 13
was neither uncanalised nor arbitrary. S. 13 prescribes
that the local authority should make an inquiry before
granting or refusing a commencement certificate. The
Authority must therefore look into all material available to
it including the tentative plans and the final development
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plan and then make up its mind as to whether a commencement
certificate should be granted or not. If the provisions of
the Act are borne in mind and the rules framed thereunder
complied with, there was little or no scope for the local
authority acting arbitrarily under s. 13 of the Act.
[298A--C]
The fact that no appeal from the decision under s. 13 was
provided for is a matter of no moment for the authority
under s. 13 is no less than the Municipal Commissioner
himself or the Chief Officer of the Municipal Borough or a
person exercising the power of an Executive Officer of any
local authority. when the’ power had to be exercised by one
of the highest officers of the local authority intimately
connected with the preparation of the development plan in
all its stages, it is difficult to envisage what other
authority could be entrusted with the work of appeal or
revision. [297F-H]
(iii) In view of the immensity of the task of the local
authorities to find funds for the acquisition of lands for
public purposes, a period’ of ten years fixed by s. 11 (3)
was not too long. In the present case the authority had to
deal with an area measuring about 169 sq. miles which was
larger than most of the big cities in India.
276
The preparation of a development plan for such an area must
take a considerable period of time. Furthermore, it is not
beyond the range of possibility that the final development
plan may require modifications.. It could not therefore be
held that the limit of time fixed under s. 14 read with s.
11(3) formed an unreasonable restriction on the right to
hold property. [298G-229A]
Joyti Pershad v. Administration for The Union Territory of
Delhi, [1962] 2 S.C.R. 125 Manecklal Chhotalal & Ors. v. M.
G. Makwana and Ors; W.P. 64/1966, cases, relied upon.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 215, 228, 251 and
256 of 1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
K. R. Chaudhuri and K. Rajendra Chaudhury, for the peti-
tioner (in W.P. No. 215 of 1966).
A.S. R. Chari, S. B. Naik, K. Rajendra Chaudhury and
K. R. Chaudhuri, for the petitioners (in W. Ps. Nos. 228
and 251 of 1966).
B. Sen, Rameshwar Nath and Mahinder Narain, for the
petitioner (in W.P. No. 256 of 1966).
Purshottam Trikamdas, G. L. Sanghi and J. B. Dadachanji, for
the respondents Nos. 1-3 (in W.Ps. Nos. 215, 228 and 256 of
1966) and respondents Nos. 1 and 2 (in W.P. No. 251 of
1966).
M. S. K. Sastri and S. P. Nayar, for respondent No. 4 (in
W.Ps. Nos. 215, 228 and 256 of 1966) and respondent No. 3
(in W.P. No. 251 of 1966).
The Judgment of the Court was delivered by
Mitter, J. This is a group of four writ petitions filed
under Art. 32 of the Constitution. The common attack in all
these petitions is against the validity of certain sections
of the Bombay Town Planning Act, 1954, hereinafter referred
to as the Act.
The petitioners are all owners of plots of land in areas
round about Bombay, commonly known as Greater Bombay. They
have all similar but separate grievances with respect to the
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development plan prepared and published under the Act. In
Writ Petition No. 215 of 1966, the petitioner’s complaint is
as regards his land being earmarked for the public purpose
of a park in the Development Plan prepared under the Act.
He seeks to, prevent the respondents from giving effect to
the said designation of lands in the Development Plan and in
particular, to have the third respondent’s order i.e. the
Executive Engineer (Planning) (of the Municipal Corporation
of Bombay) dated 11th August, 1964 to the effect that his
lands were needed for the public purpose of a park quashed.
In Writ Petition No. 228 of 1966 the prayer is that the
designation of the petitioners’ land as being earmarked for
recreation centre and for green belt in the development plan
277
of ’P’ Ward of the City of Greater Bombay should be removed,
that their lands should be redesignated as earmarked for
industrial purpose, that the order of the Assistant
Engineer, Bombay Municipal Corporation, rejecting the
petitioners’ proposal for construction of two factory
buildings and lavatory blocks should be quashed and a
declaration be made that ss. 9, 10, 11, 12 and 13 of the
Bombay Town Planning Act are ultra vires the Constitution of
India. In Writ Petition No. 251 of 1966 the prayers include
an order for quashing Resolution No. 1173 of December 19,
1963 and Resolution No. 343 of July 2, 1964 of the first
respondent and for removal of the designation attached to
the petitioners’ land as reserved for Government purposes in
the Development Plan of ’P’ Ward of Greater Bombay. In Writ
Petition No. 256 of 1966 the prayers are inter alia for the
issue of writs declaring that the Development Plan submitted
by the first respondent to the fourth respondent (including
P Ward) on July 3, 1964 infringes the petitioners’ rights
and directing the issue of a commencement certificate for
the development and utilisation of the said land in the
manner proposed. At the hearing, a further prayer was made
for urging an additional ground in all the writ petitions
challenging the validity of s. 17 of the, Act.
We may consider the broad facts in Writ Petition No. 228 of
1966 by way of sample. The petitioners in this case are two
persons who claim to be owners of land bearing S. No. 70,
Hissa Nos. 4, 5 and 6 comprising an aggregate area of 31,641
sq. yds. approximately in village Pahadi at Goregaon in
Greater Bombay. Their case is that they had applied through
their architect on January 2, 1962 for permission to change
the existing user of their lands by putting them to
industrial use and had written a letter to the Municipal
Commissioner of Bombay for that purpose by which they
proposed to construct on a portion of the land in S., No. 70
Hissa No. 4 a shed for a factory and other necessary sheds.
Along with the said letter, they gave a notice under s. 33
of the Bombay Municipal Corporation Act, 1888 of their
intention to erect a factory shed on the said land with a
request for approval thereof. On January 27, 1962 the
Executive Engineer, Development Plan, intimated the
petitioners that as a major portion of the proposed factory
shed intended to be constructed fell outside the heavy
industrial zone in the green belt area as shown in the plan
accompanying the letter and as the area was affected by net
work of proposed 78 East West and 30’ wide North South road
under the development plan of the area, with only a small
portion of the land shown coloured violet filling in the
heavy industrial area, a commencement certificate could not
be granted. By their letter dated March 13, 1962 the
petitioners complained that the Executive Engineer,
Development Plan, had no authority to earmark any area for
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green belt and therefore he should reconsider the matter and
grant a commencement certificate. On the
278
Same day, the petitioners also wrote to the Municipal
Commissioner that inasmuch as they had not till then
received the notice of disapproval or. any further
requisition concerning their application, they would place
on record that their right to proceed with the construction
of the intended shed had become absolute under S. 345 of the
Bombay Municipal Corporation Act. On March 22, 1962 the
Deputy Municipal Commissioner (Suburbs) acknowledged receipt
of the letter. By letter dated April 18, 1962 the Executive
Engineer, Development Plan, informed the petitioners that
their request for a commencement certificate would not be
reconsidered until the development plan was finalised. By
their solicitor’s letter dated June 13, 1962 the petitioners
wrote to the 1st respondent, i.e. the Bombay Municipal
Corporation, that the refusal to grant a commencement
certificate was wrongful. This was followed up by a writ
petition in the High Court of Bombay being Miscellaneous
Petition No. 256 of 1962 challenging the said refusal as
illegal and invalid. By order dated September 7, 1963 the
High Court of Bombay allowed the petitioners’ application on
the ground that the powers and functions of the Bombay
Municipal Corporation under S. 12 of the Act had not been
exercised by an officer prescribed under S. 86 of the Act
and the decision dated January 27, 1962 was liable to be set
aside.
The development plan for Greater Bombay (D Ward) was adopted
by the first respondent by resolution No. 1173 on December
19, 1963. By this resolution the second respondent was
directed to submit proposals of the development plan in
respect of the remaining wards including Ward P in which the
petitioners’ land was situated. On January 9, 1964 the
development plan for the remaining wards including Ward P
was published by the second respondent in the name of the
first respondent. In this the petitioners’ land was shown
as partly reserved for public roads, for industrial
purposes, the major portion being merely marked by green
colour. The petitioners’ complaint is that the list of
sites reserved for public purposes was for the first time
submitted by the second respondent to the Development
Committee on February 8, 1964 showing for the first time
that a major portion of the petitioners’ lands were
earmarked for a recreation centre. This list was
recommended for acceptance by the Committee to the first
respondent on June 24, 1964 and approved by resolution No.
343 on July 2, 1964 and forwarded to the State of Maharash-
tra, the fourth respondent herein, on July 8, 1964. The
petitioners complain that although in the plan as originally
published the lands of the petitioners were earmarked partly
for public roads in an industrial area and merely marked by
green colour without any specification and designation, by
resolution No. 343 the first respondent departed from the
development plan and included a portion of the lands for
recreation centre amongst the sites reserved for public
purposes. According to the petitioners, this redesignation
and modification was made although there were no
279
suggestions before the first, second and third respondents
in the light of which any modification could have been made
under s. 9 of the Act. The petitioners by their solicitor’s
letter dated April 16, 1964 requested the respondents to
alter the development plan in accordance with the decision
of the Bombay High Court and further demanded re-designation
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of their lands as reserved for industrial purpose. This
matter was again taken up to the High Court of Bombay by way
of petition No. 248 of 1964 challenging the refusal of the
first and second respondents to modify the development plan.
This was rejected in limine by the High Court on July 6,
1964. The appeal therefrom being No. 42 of 1964 was also
rejected on August 12, 1964. The petitioners’ case is that
the High Court rejected petition No. 248 of 1964 on the view
that they had no cause for complaint unless and until the
first respondent refused permission to commence
construction. They therefore submitted building plans
through their architect on January 9, 1965 for construction
of a factory shed with a prayer for the issue of a
commencement certificate. The third respondent i.e. the
Assistant Engineer, Bombay Municipal Corporation by letters
dated January 25, 1965 and February 13, 1965 rejected the
petitioners’ proposal for construction of factory buildings
on their lands on the ground that the lands fell in the
reservation for playgrounds and 200 feet wide green belt in
the development plan.
The petitioners again went up to the Bombay High Court on
July 2, 1965 by another petition No. 312 of 1965 for, the
issue of a writ of mandamus for setting aside the orders of
the third respondent dated January 25, 1965 and February 13,
1965 and directing the respondent to remove the designation
of recreation centre and green belt from the petitioners’
land and to designate the entire holding as industrial area
in the development plan. The petition was rejected in
limine by the Bombay High Court on July 6, 1965. An appeal
therefrom came for hearing on August 10, 1965 when an order
was made by consent directing the writ petition to be placed
for hearing before a Division Bench. Ultimately, however,
this was dismissed by judgment dated April 25, 1966.
According to the petitioners, they had not challenged the
constitutionality of the Act in their petitions.
In the present petition to this Court the substantial
complaint is that their lands were earmarked in the
development plan originally published on January 9, 1964 by
green colour without assigning any purpose and the
reservation and re-designation of these lands for recreation
centre and green belt by the first, second and third
respondents in the development plan finally adopted was in
contravention of s. 9 of the Act. This re-designation is
challenged as being without authority of law and violative
of the fundamental rights of the petitioners inter alia
under Arts. 14 and 19 of the Constitution.
280
In the affidavit in opposition filed on behalf of the first
respondent, reference is made to the manner and the course
of preparation of the development plan set out in greater
detail hereafter. A preliminary objection was taken,
formulated in some detail, that on the failure of the
petitions in the Bombay High Court, the petitioners could
not re-agitate the matter in this Court on principles
analogous to res judicata. It is not necessary to go into
that question or take note of the correspondence which
passed between the parties and/or their solicitors up to
1964. According to the affidavit, the lands belonging to
the petitioners were shown in the draft development plan as
published on 9th January 1964 as reserved for green belt,
for public roads with a path being shown as falling in the
industrial zone. The deponent, the Executive Engineer
(Planning) stated that the suggestions and objections
received after the publication of the draft plan were care-
fully considered by the Development Committee which
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submitted its report with its recommendations to the first
respondent for its approval and such approval was given on
July 2, 1964. Ultimately, the plan was sanctioned by the
fourth respondent after consulting the Special Consulting
Surveyor subject to certain modifications. The petitioners’
solicitor’s letter dated April 16, 1964 was placed before
the Development Commitee for due consideration. The
Development Plan Committee considered the suggestions made
by the public and gave a report in respect thereof to the
first respondent from time to time who finalised the plan at
its meeting held on July 2, 1964. According to the
deponent, the letters dated January 25, 1965 and February
13, 1965 addressed by the third respondent were in proper
exercise of the right of rejection of the petitioners’
proposal for construction of a factory building. Finally
the deponent stated that no part of the petitioners’ lands
were earmarked for green belt in the development plan as
finally approved by the respondent, that out of 32,000 sq.
yds. of the petitioners’ lands, 12,144 sq. yards of land had
been earmarked and reserved for playground’ 804 sq. yds. had
been earmarked and reserved for municipal wholesale market,
7,821 sq. yds. had been earmarked and reserved for public
road, 1167 sq. yds. fell under residential zone and the
balance of 8,702 sq. yds. fell in the industrial zone.
It will therefore be noticed that the facts as laid in the
petitions are not all admitted in the affidavit, but nothing
was sought to be made out of this and one common argument as
to the invalidity of the different sections of the Act was
advanced- in great detail mainly by Mr. Chari who was
followed by Mr. Sen and Mr. Chaudhuri. In substance, the
united attack was against the validity of the different
sections mentioned in detail hereafter.
Before examining the contentions on the points of law raised
,in this case, it is necessary to appreciate what the Act
sought to achieve and why it was brought on the statute
book. In order to do this, it is necessary to take stock of
the position at the time
281
of its enactment so that attention may be focussed on the
situation calling for a remedy, and how the legislature
sought to tackle it. It is common. knowledge that for a
number of years past, all over India, there has been and is
continuing a great influx of people from the villages to
towns and cities for the purpose of residence and
employment. Besides this, the whole of the country is in
the grip of a population explosion. Another circumstance to
be reckoned with is that industrial development is taking
place in and round about many cities which in its turn is
attracting people from outside. Most of our towns and
cities have grown up without any planning with the result
that public amenities therein are now being found to be
wholly inadequate for the already enlarged and still
expanding population. The roads are too narrow for modern
vehicular traffic. The drainage system, such as it obtains
in most of the towns and cities, is hopelessly inadequate to
cope with the requirements of an already overgrown
population. In most of the towns and cities there is no
room for expansion of public amenities like hospitals,
schools, colleges and libraries or parks. Some improvement
has been sought to be made by Town Improvement Acts enacted
in the different States. In order that the suburbs and the
surroundings of towns and cities be developed properly and
not allowed to grow haphazard, the Legislature of Bombay
felt that towns should be allowed to, .grow only on planned
schemes formulated on the basis of a development plan. All
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"local areas" which may be equated roughly with
municipalities were to have development plans so that an
overall picture might be taken of the needs of the expanding
town or city and provision made for planned development with
regard to roads and streets, sanitary arrangements like
drainage and water supply, places of public utility,
industrial development etc. The legislature was well aware
of the practical difficulties and the magnitude of the task.
A development plan for a huge area like Greater Bombay could
not be formulated within a space of weeks or months. A
survey had to be made of the area under the local authority
to take note of the existing conditions and the plan pre-
pared keeping in mind the facilities available and those
which might be had in the forseeable future. Sections of
the area have to be set apart in the different localities
for industrial and commercial development, for private
housing, for the purpose of the Union or the State, for
educational and other institutions, as also for parks and
places of public resort. The authority responsible for the
drawing up of the plan had to have regard to the wishes and
suggestions of the public and in particular, architects,
engineers, industrialists and. public bodies. Of necessity,
a skeleton plan had to be sketched at first which could be
given a final shape after considerable deliberation
following the suggestions of the parties interested and the
recommendations received. Let us now see how the
Legislature of Bombay sought to tackle this huge problem.
282
The Act is described- as one to consolidate and amend the
law by making and executing town planning schemes. The
preamble to the Act shows that its object was to ensure that
town planning schemes were made in a proper manner and their
execution was made effective by local authorities preparing
development plans for the entire area within their
jurisdiction. A "development plan" under the Act means a
plan for the development or re-development or improvement of
the entire area within the jurisdiction. of a local
authority. A local authority is defined as a municipal
corporation or a municipality and includes some appointed
committees as also panchayats constituted under the
different Acts. Chapter II containing ss. 3 to 17 relates
to development plans generally. S. 3(1) provides that as
soon as may be after the coming into force of the Act, every
local authority shall carry out a survey of the area within
its jurisdiction and prepare and publish in the prescribed
manner a development plan and submit the same to the State
Government for sanction. The limit of time for this purpose
was four years. Sub-s. (3) authorised the State Government
to make an order for extension of the time fixed by sub-s.
(1) for adequate reasons. Sub-s. (4) authorised the State
Government, in case a development plan was not prepared and
published in terms of sub-s. (1), to prepare and publish
such a plan, itself after carrying out the necessary
surveys. Under sub-s. (1) of s. 4 even before carrying out
a survey of the area referred to in sub-ss. (1) and (2) of
S. 3, for the purpose of preparing a development plan for
such area, the local authority was obliged to make a
declaration of its intention to prepare such a plan and to
despatch a copy thereof to the State Government for publica-
tion and publish the same itself in the prescribed manner
for inviting suggestions from the public within a period of
two months. Under sub-s. (2) a copy of the plan was to be
open to the inspection of the public at all reasonable hours
at the head office of the local authority. Ss. 5 and 6
provided for the manner of preparing development plans and
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the authorisation of certain persons to enter upon, survey
and mark,’ out that land for the preparation of the plan.
S. 7 indicated the manner in which the development and
improvement of the entire area within the jurisdiction of
the local authority was to be carried out and regulated. In
particular, it had to contain several proposals, namely:-
(a) for designating the use of the land for the purposes
such as (1) residential, (2) industrial, (3) commercial, and
(4) agricultural-,
(b) for designation of land for public purposes such as
parks, playgrounds, recreation grounds, open spaces,
schools, markets or medical, public health or physical
culture institutions;
(c) for roads and highways;
(d) for the reservation of land for the purpose of the
Union, State, any local authority or any other authority
established by law in India; and
283
(e) such other proposals for public or other purposes as may
from time to time be approved by a local authority or
directed by the State Government in this behalf.
Under s. 8 various particulars had to be published and sub-
mitted to the State Government along with the development
plan inclusive of a report of the surveys carried out by the
local authority, a report explaining the provisions of the
development plan, a report of the stages by which it was
proposed to meet the obligations imposed on the local
authority by the development plan and an approximate
estimate of the cost involved in the acquisition of lands
reserved for public purposes.
It will be noticed that up to this point the public have
practically no say in the matter as to how the development
plan should be prepared. S. 9 however gives such right to
the public and provides:
"If within two months from the date of
publication of the development plan any member
of the public communicates in writing to the
local authority any suggestion relating to
such plan, the local authority shall consider
such suggestion and may, at any time before
submitting the development plan to the State
Government, modify such plan as it thinks
fit."
At this stage therefore every owner of land is given the
right to make suggestions for modification of the plan. He
can consult the plan and make his suggestions, principally
with the idea that his interest may not be adversely
affected although there is nothing in the section which
prevents him from making suggestions generally with regard
to the plan itself.
Under s. 10(1) the State Government is given the power to
sanction, the development plan submitted to it for the,
whole of the area, or sanction it separately in parts either
without modification or with such modification as it
considers expedient within the time prescribed by the rules.
If the development plan is sanctioned separately in parts,
then each part so sanctioned is deemed, to be the final
development plan for the purposes of the succeeding
provisions of the Act. All such provisions are to apply in
relation to such part as they apply in relation to a deve-
lopment plan relating to the whole of the area. Under sub-
s. 8(2) the State Government has to fix in its notification
sanctioning the plan a date not earlier than one month after
the publication of which the final development plan shall
come into force. Sub-s. (3) provides:
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"If the development plan contains any proposal
for the designation of any land for a purpose
specified in clause (b) or (e) of section 7
and if such land does not vest in the local
authority, the State Government shall
284
not include the said purpose in the
development plan unless it is satisfied that
the local authority concerned shall be able to
acquire such land by private agreement or
compulsory purchase within a period of ten
years from the date on which the final
development plan comes into force."
The idea behind this sub-section is that if any land is to
be set apart for public purposes such as parks etc.
mentioned in cl. (b) of s. 7 or any other public purpose
which might be approved by a local authority or directed by
the State Government in terms of cl. (e) of S. 7, the State
Government must examine whether it would be possible for the
local authority to be able ’to acquire such land by private
agreement or compulsory purchase within a period of ten
years. This acts as a check on the local authority making
too ambitious proposals for designating lands for public
purposes which they may never have the means to fulfil. It
is obvious that the local authority must be given a rea-
sonable time for the purpose and, the legislature thought
that a period of ten years was a sufficient one. S. 11(1)
empowers the local authority to acquire any land designated
in the development plan for a purpose specified in cls. (b)
(c), (d) or (e) of S. 7 either by agreement or under the
Land Acquisition Act. Under sub-s. (2) of s. II the
provisions of the Land Acquisition Act of 1894 as amended by
the Schedule to the Act are to apply to all such
acquisitions. The Schedule to the Act shows that S. 23 of
the Land Acquisition Act is to stand amended for the
acquisition under this Act with regard to the compensation
to be awarded. In fact it is for the benefit of the person
whose land is acquired, as he can get the market value of
the land at the date of the publication of the declaration
under S. 6 of the Land Acquisition Act in place of s. 4.
Sub-s. (3) provides that if the designated land is not
acquired by agreement within ten years from the date speci-
fied under sub-s. (3) of S. 10 or if proceedings under the
Land Acquisition Act are not commenced within such period,
the owner or any person interested in the land may serve
notice to the local authority and if within six months from
the date of such notice the land is not acquired or no steps
as aforesaid are commenced for its acquisition, the
designation shall be deemed to have ,lapsed. This provision
again is for the benefit of the owner of the land for unless
the land is-acquired or steps taken in that be. half within
the fixed limits of time, he ceases to be bound by the
designation of his land as given in the development plan.
S. 12 obliges every person who desires to carry on any deve-
lopment work in any building or in or over any land within
the limits of the said area after the date on which a
declaration of intention to prepare a development plan to
apply to the local authority for a commencement certificate
for the purpose. ’Development ’in this connection means
carrying out of building or
285
other operations in or over or under any land or the making
of any material change in the use of any building or other
land. It is to be noticed that the section imposes such
restriction not only from the date of preparation of the
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development plan but as soon as there is publication of
intention to prepare a development plan.
In order to make it obligatory on the local authority to
direct its attention to all applications for permission to
carry on development work, the legislature provided by sub-
s. (1) of s. 13 that
"The local authority on receipt of the
application for permission shall at once
furnish the applicant with a written
acknowledgment of its receipt and after
inquiry may either grant or refuse a
commencement certificate.
Provided that such certificate may be granted
subject to such general or special conditions
as the State Government may by order made in
this behalf direct."
Under sub-s. (2) if the local authority does not communicate
its decision within three months from the date of such
acknowledgment, such certificate shall be deemed to have
been granted to the applicant. Sub-s. (3) provides that no
compensation is to be payable for the refusal of or the
insertion or imposition of conditions in the commencement
certificate. This is subject to’ the provisions of ss. 14
and 15. Sub-s. (4) lays down that any work done in
contravention of s. 12 or of sub-s. (1) of s. 13 may be
pulled down by the local authority.
In this case, we are not concerned with the applicability of
ss. 14, 15 and 16. S. 17 which was attacked in these cases
provides that:
"At least once in every ten years from the
date on which the last development plan came
into force and where the plan is sanctioned in
parts from the date on which the last part
came into force, the local authority may, and
if so required by the State Government after
the date on which a development plan for any
area or, as the case may be, the part of such
plan has come into force shall, carry out a
fresh survey of the area within its
jurisdiction with a view to revising the
existing development plan including all parts
if sanctioned separately and the provisions of
sections 4 to 16 (both inclusive) shall, so
far as they can be made, applicable, apply in
respect of such revision of the development
plan."
Strong objection was taken to this section on the ground
that it gave the local authority concerned almost an
unlimited power of protracting the finalisation of the
development plan if they were
286
so minded in which case the owners of property would be com-
pletely at the mercy of the local authority with respect to
the development of their own land.
Chapter III deals with the making of a town scheme. Under
S. 18 such a scheme is ordinarily to be made for the purpose
of implementing the proposals in the final development plan.
It is in the town planning scheme that provisions are to be
made for laying out or relaying out of land, laying out of
new streets or roads, the construction, alteration and
removal of buildings, the allotment or reservation of land
for roads, open spaces, recreation grounds etc., lighting,
water supply and the many other things which have to be
provided for in the laying out of a town.
Chapter IV deals with town planning schemes in general. S.
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21 shows that such a scheme may be made in accordance with
the provisions of the Act in respect of land which is in the
course of development or is likely to be used for building
purposes, or has already been built upon. S. 22 empowers
local authority to declare its intention to make a town
planning scheme in respect of the whole or any part of land
referred to in S. 2 1. Under S. 23 the local authority is
obliged to make in consultation with the Consulting
Surveyor, a draft scheme for the area in respect of which
the declaration has been made within twelve months from the
said date. The other sections 24 to 29 generally follow the
same pattern with regard to town planning schemes as is to
be found in ss. 7 to 13 relating to development plans. S.
29 restricts the right of owners of land to erect or proceed
with any building or remove, pull down, alter, make
additions to or any substantial repair to any building or
change the use of any land or building unless he has
obtained the necessary permission from the local authority,
once there has been a declaration of intention to make a
scheme under S. 22. S. 87 gives the State Government power
to make rules for carrying out the purposes of the Act.
We may now proceed to take note of how the Bombay Municipal
Corporation proceeded to make the development plan against
which common complaints have been made. The gist of the
contents of the counter affidavits is as follows. After the
Act came into force on April 1, 1957, the first respondent
by resolution No. 409 dated July 7, 1958, declared its
intention to prepare a development plan for the entire area
of Greater Bombay within its jurisdiction. In terms of rule
3 framed under the Act, a map of the said area accompanied
the said declaration and within 15 days of the date of such
declaration the first respondent despatched a copy of the
same together with a copy of the map to the State Government
for publication in the Official Gazette. On September 18,
1958 the first respondent published its intention to prepare
a development plan by means of advertisements in newspapers
circulating in Greater Bombay and affixing copies of the
advertisements on the notice boards at its head office and
other
287
prominent places in the area. By the said publications, the
first respondent invited objections and suggestions from the
public within a period of two months, keeping open for
inspection a copy of the plan at its head office. The
Municipal Commissioner of Bombay who is a respondent herein
set up two Advisory Committees for rendering assistance in
the preparation of the development plan. One Committee was
composed of representatives of Government departments,
public authorities, industries etc., while the other was
composed of practising architects and engineers. After
taking into consideration the suggestions received and- con-
sultations held, tentative development plans for all the
wards in Greater Bombay were prepared and discussed by the
two Advisory Committees. With a view to give wide publicity
to the said plans, the same were displayed for public
inspection during the year 1960-61. This was further
notified in newspapers. As a result of the publication’ of
the tentative plans, a large number of objections and
suggestions regarding the tentative development plans were
received from the public by the first respondent. The
tentative plan for D Ward was put up first as a model plan
for consideration by the Development Plan Committee
appointed by the first respondent. The said Committee
invited suggestions from municipal councillors and different
organisations and institutions. Thereafter, the said
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Committee recommended that the second respondent be
authorised to publish.., the plan for ’D’ Ward and to invite
suggestions from the public as per the provisions of s. 9 of
the Act. The Development Plan Committee made similar recom-
mendations for the other wards. Thereafter, the first
respondent resolved and authorised the second respondent to
publish the development plans in respect of all other wards
in Greater Bombay including ’P’ Ward.
We may now make a note of a few details. The draft of a
section of the development plan for K, P and R Wards was
published on or about July 7, 1961. The Development Plan
Committee took up its work after appointment on December 11,
1961. The formalities mentioned above were then gone
through. On January 9, 1964 the first respondent after
considering the proposals made in the tentative development
plan and the reports of the Development Plan Committee,
prepared a development plan and published the same by means
of advertisements in approved newspapers and in the Official
Gazette. Copies of the advertisements were also displayed
at various prominent places. The advertisements published
in pursuance of s. 9 of the Act announced to the public that
communications in writing containing suggestions relating to
the plan would be welcome within a period of two months.
Many such suggestions were received and considered by the
Development Plan Committee who made reports from time to
time to the first respondent. After considering such
reports of the Development Plan Committee, the first
respondent at a meeting held on July 2, 1964 finalised the
development plan
288
after incorporating therein such suggestions as it thought
proper or necessary. On July 8, 1964, the development plan
was submitted by the Municipal Commissioner to the State
Government for its sanction under S. 10 of the Act. The
State Government forwarded all objections to the development
plan received by the first respondent to the Special
Consulting Surveyor to the Government of Maharashtra
specially appointed to advise the Government on the
development plan. The Consulting Surveyor scrutinised the
objections and- advised the Government thereon. In cases
where changes had been made by the first respondent after
publication of the draft development plan, the Consulting
Surveyor heard the parties who had objected to such changes
and then framed his proposals in respect of such ward in the
development plan for sanction by the Government. Government
had to consider the development plan ward-wise in view of
the enormity of the task as the plan covered an area of 169
sq.-miles divided into fifteen wards affecting a population
of nearly 45 lakhs. The plan was so large and detailed that
Government found it impracticable- to sanction it within the
time prescribed by the Bombay Town Planning Rules and
consequently had the time extended from time to time by
various resolutions. Ultimately after consulting the
Special Consulting Surveyor, the Government of Maharashtra
sanctioned the development plan in respect of ’P’ Ward on
September 14, 1966. The final plan with regard to Ward ’D’
had been sanctioned, on December 10, 1963.
The common complaint in all these petitions is that ss. 9
and 10 of the Act are invalid and unconstitutional in that
they empower the local authority and the State Government to
modify the development plan without giving opportunity to
persons whose interest might be adversely affected by such
modification. It was argued that a person, say A, who had,
a look at the development plan as first prepared and
published, might feel quite satisfied with it and not make
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any suggestions in respect thereof. It being however open
to others to make suggestions without any notice to A, the
local authority was in a position to consider such sug-
gestions and give effect thereto in the development plan
submitted to the State Government. The first mentioned
person A in such a case would remain in blissful ignorance
of the fact that the plan as finally submitted affected his
interest very seriously. It was then argued, that if such a
modified plan was sent to the State Government it was open
to Government to sanction it after consulting the Consulting
Surveyor again without any notice to a person like A who
might find the sanctioned plan very severely prejudicing his
interests in the land held by him. To take an instance, it
was said a person who found that his land was in the
industrial belt in the tentative development plan might feel
quite happy with it but as a result of the modifications,
the plan, as finally sanctioned, might designate his land as
earmarked for public purposes.
289
By this he would stand to lose his land without any
opportunity being given to him to make any representation in
respect thereof.
It was next argued that the powers and functions of a local
authority for purposes of ss. 12 and 13, amongst others were
to be exercised and performed by the Municipal Commissioner
of Bombay under s. 86 of the Act. Under s. 12 the final and
only authority who had the power to grant or withhold
permission to carry on any development work was the
Municipal Commissioner. He could, under s. 13 grant or
refuse a commencement certificate at his own sweet will and
pleasure there being nothing to guide him in such a matter
before the preparation of a development plan. It was argued
that even after the preparation of such a plan a
commencement certificate could be refused arbitrarily and
there was no provision for any appeal from or revision of
the order containing the refusal.
It was next argued that by the combined operation of ss. 4
and 11(3) the local authority could easily delay the
acquisition of any land designated for public purposes under
s. 7 of the Act for 14 years and if resort was had to
power,% under s. 17 of revising the development plan at the
end of this period of 14 years. provisions of ss. 4 to 16
would again become operative with the result that the
acquisition might be delayed for a further period of ten
years. Mr. Chari went to the length of arguing that s. 17
might even be resorted to more than once and so acquisition
might be held up indefinitely from generation to generation.
In our opinion, the argument though at first sight forceful
cannot be accepted. As already noted, a development plan
for an area like Greater Bombay cannot be chalked out or put
in blueprint in the space of a few months. We have seen
that in order to perform this enormous task, an Advisory
Committee composed of representatives of various public
bodies was formed to advise the Municipality with respect
thereto and, the public were freely invited to take part
therein. Before anything could be done, a survey of the
area had to be made and a map thereof prepared. Such a map
would show the already existing industrial areas, public
amenities, roads and bridges and would give anybody wishing
to find out some idea as to the lines on which the deve-
lopment of the city should proceed. One would then have to
take into consideration the existing roads, industrial
establishments and public amenities already there because
the plan as emerging finally could not be made on a clean
slate but had to take into account already existing things
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and the difficulties which would have to be met and overcome
when different parts of the area were to be earmarked for
special purpose. Plans for various sections of Greater
Bombay were prepared with the assistance of the Advisory
Committee. The tentative development plans in this case
were displayed for public inspection during the year
290
1960-61. Within a space of two years, therefore, the local
authority had some guidance in the matter of granting or
refusing a commencement certificate for development work of
any land proposed to be taken up by any,, of the
petitioners. A reference to the tentative plans would show
whether the area within which the. development work was
proposed to be carried on was set apart for industrial,
commercial, residential or agricultural purposes, or whether
it was to be set apart for public purposes. It might be
that as a result of the modification of the tentative plan,
the area which at first fell under the designation
"residential" came to be included in the area designated as
"industrial" or even came to be embraced for designation for
a public purpose.
In all such cases where large powers are given to certain
authorities the exercise whereof may make serious in-roads
into the rights of property of private individuals, we have
to see whether there is any guidance to be collected from
the Act itself, its object and its provisions, in the light
of the surrounding circumstances which made the legislation
necessary taken in conjunction with well known facts of
which the court might take judicial notice.
We may in this connection refer to a judgment of this Court
in Jyoti Pershad v. Administration for The Union Territory
of Delhi(1). The facts in that case were as follows. The
petitioner who was the owner of a house containing several
rooms let out to different individuals, desired to demolish
the same and reconstruct it. He submitted a plan to the
Council of the Delhi Municipal Committee and applied for
sanction for the reconstruction of the house. After the
sanction of the plan, he filed suits for eviction of nine
tenants under s. 13(1)(g) of the Delhi and Ajmer Rent
Control Act 38 of 1952. In order to succeed in the suits he
had to show that he had a plan sanctioned by the municipal
authorities which made provision for the tenants then in
occupation of the house being accommodated in the house as
reconstructed and that he had the necessary funds to carry
out the reconstruction. The petitioner had no difficulty in
establishing these and he succeeded in getting decrees for
eviction. The tenants however refused to give up possession
and went up in appeal. Ultimately, however, the petitioner
succeeded in the appeals filed by the tenants. Meanwhile,
the Slum Areas (Improvement and Clearance) Act 96 of 1956
was enacted by Parliament and came into force in the Delhi
area. S. 19(1) of that Act provided that:
"Notwithstanding anything contained in any
other law for the time being in force, no
person who has obtained any decree or order
for the eviction of a tenant from any building
in a slum area shall be entitled to execute
such decree or order except with the previous
permission in writing of the competent
authority."
[1962] 2 S.C.R. 125.
291
Under sub-s. (2) every person desiring to obtain the
permission referred to in sub-s. (1) shall make an
application in writing to the competent authority giving
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particulars as may be prescribed. Under sub-s. (3) the
competent authority was bound to make a summary enquiry
after giving an, opportunity to the tenant of being heard
and then by order in writing either grant or refuse to grant
it. Under sub-s. (4) the competent authority must record a
statement showing brief reasons for such refusal. The peti-
tioner’s application under s. 19 was turned down by
the,competent authority on the ground that the house was not
in such a condition that it called for demolition and if
sanction was given the tenants would be thrown out and it
would be impossible for them to get accommodation in the
reconstructed building as they were very poor and not likely
to be able to pay the enhanced rent in respect of rooms in
Delhi. The appeal by the petitioner to the Union Territory
was dismissed mainly on the ground that if the appeal was
allowed a large number of poor tenants from slum areas would
be evicted and as the property itself was not in a
dilapidated condition and declared unfit for human
habitation, permission to evict the tenants could not be
given. The petitioner then moved this Court for the issue
of a writ of certiorari to quash these orders. His
complaint was that s. 19 of the Act was invalid and
unconstitutional and violated the petitioner’s rights
guaranteed by Arts. 14 and 19(1)(f) of the Constitution.
There it was argued that s. 19(3) of the Act vested an
unguided, unfettered and uncontrolled power in an executive
officer to withhold permission to execute a decree which a
landlord had obtained after satisfying the reasonable
requirements of law as enacted in the Rent Control Act. It
was further urged that neither s. 19 of the Act nor any
other provision of it indicated the grounds on which the
competent authority might grant or withhold permission to
execute decrees and the power conferred was therefore
arbitrary and offended Art. 14 of the Constitution. It was
further urged that there was an excessive delegation of
legislative power as the executive authority could at its
sweet will and pleasure disregard rights to property without
any guidance from the legislature. A point was further
raised that such refusal might go on for an indefinite and
indeterminate period of time affecting the petitioner’s
right to enjoy his property and imposing an excessive and
unreasonable restraint on his right. The import and scope
of Art. 14 of the Constitution was examined in this case at
some length. The Court examined the provisions of the Slum
Areas (Improvement and Clearance) Act and noted that the
process of slum clearance and re-development would have to
be carried out in an orderly fashion if the purpose of the
Act was to be fulfilled and the policy behind it, viz., the
establishment of slum dwellers in healthier and more
comfortable tenements so as to improve the health and morals
of the community, was to be achieved. Chapter VI of the Act
which was headed "Protection of tenants in Slum
292
Areas from Eviction", read in the light of the other
provisions of the Act made it clear that it was necessary to
allow the slum dwellers to remain in their dwellings until
provision was made for a better life for them elsewhere. It
was said:
"Though therefore the Act fixes no time limit
during which alone the restraint on eviction
is to operate, it is clear from the policy and
purpose of the enactment and the object which
it seeks to achieve that this restriction
would only be for a period which would be
determined by the speed with which the
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authorities are able to make other provisions
for affording the slum dwellertenants better
living conditions. The Act, no doubt, looks
at the problem not from the point of view of
the landlord, his needs, the money he has sunk
in the house and the possible profit that he
might make if the house were either let to
other tenants or was reconstructed and let
out, but rather from the point of view of the
tenants who have no alternative accommodation
and who would be stranded in the open if an
order for eviction were passed."
Taking into consideration the entire provisions of the Act,
the Court observed:
"In view of the foregoing we consider that
there is enough guidance to the competent
authority in the use of his discretion under
s. 19(1) of the Act and we, therefore, reject
the contention that s. 19 is obnoxious to the
equal protection of laws guaranteed by Art. 14
of the Constitution. We need only add that it
was not, and could not be, disputed that the
guidance which we have held could be derived
from the enactment, and that it bears a
reasonable and rational relationship to the
object to be attained by the Act and, in fact,
would fulfil the purpose which the law seeks
to achieve, viz., the orderly elimination of
slums, with interim protection for the slum
dwellers until they were moved into better
dwellings."
The further objection that Parliament when enacting the Act
could easily have indicated with reference to the several
grounds on which eviction could be had under the Rent
Control Act, the additional restrictions or further
conditions which would be taken into account by the
competent authority, was met by saying:
"In the context of modern conditions and the
variety and complexity of the situations which
present themselves for solution, it is not
possible for the Legislature to envisage in
detail every possibility and make provision
for them. The Legislature therefore is forced
to leave
293
the authorities created by it an ample
discretion limited, however, by the guidance
afforded by the Act............ So long
therefore as the Legislature indicates, in the
operative provisions of the statute with
certainty, the policy and purpose of the
enactment, the mere fact that the legislation
is skeletal, or the fact that a discretion is
left to those entrusted with administering the
law, affords no basis either for the
contention that there has been excessive
delegation of legislative power as to amount
to an abdication of its functions, or that the
discretion vested is uncanalised and unguided
as to the amount to a carte blanche to
discriminate. The second is that if the power
or discretion has been conferred in a manner
which is legal and constitutional, the fact
that Parliament could possibly have made more
detailed provisions, could obviously not be a
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ground for invalidating the law."
The other objection in that case that the power vested in
the competent authority at its sweet will and pleasure to
refuse permission to execute a decree for eviction violated
the right to hold property under Art. 19(1)(f) of the
Constitution, on the ground hat there were no principles in
the Act itself to guide the competent authority in the
exercise of his will and pleasure was met by saying that the
restrictions imposed would not be held to be unreasonable as
"the ban imposed on eviction is temporary
though......... its duration is not definite.
In the very nature of things the period when
slums would have ceased to exist or
restrictions placed upon owners of property
could be completely lifted must, obviously, be
indefinite and therefore the indefiniteness
cannot be a ground for invalidity a ground
upon which the restriction could be held to be
unreasonable."
It was further said that in considering the reasonableness
of the restriction:
"one has to take into account the fact-a fact
of which judicial notice has to be taken-that
there has been an unprecedented influx of
population into the capital, and in such a
short interval, that there has not been time
for natural processes of expansion of the city
to adjust itself to the increased needs.
Remedies which in normal times might be
considered an unreasonable restriction on the
right to hold property would not bear that
aspect or be so considered when viewed in a
situation of emergency brought about by
exceptional and unprecedented circumstances.
Just as pulling down a build-
294
ing to prevent the, spread of flames would be
reasonable in the event of a fire, the
reasonableness of the restrictions imposed by
the impugned legislation has to be judged in
the light of actual facts and not on a priori
reasoning based on the dicta in decisions
rendered in situations bearing not even the
remotest resemblance to that which presented
itself to Parliament when the legislation now
impugned was enacted."
In our opinion, the observations made in the above case
apply with equal force to the facts of this case. The
affidavits used show what an enormous increase of population
has taken place in Bombay in recent years. One cannot lose
sight of the fact that the growth of the city and the
industrialisation of its surroundings are going on apace and
if factories are allowed to be set up just where the, owners
of certain plots of land want to erect them, it could render
large areas unfit for residential purposes. In the area
covered by Greater Bombay, the municipal authorities have to
proceed with caution when sanctioning any development work.
It is well known that a master plan for Greater Bombay was
prepared even before the Act came into force but by the time
the Act was enacted the same was found to be out of date.
The preparation of a development plan for Greater Bombay was
an immense task and the authorities proceeded with it in a
manner to which no exception can be taken. They formed an
Advisory Committee, prepared a tentative development plan
and ultimately the development plans for different wards.
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At all stages, suggestions and objections were received and,
wide publicity was given to the steps which were being taken
from time to time. Although s. 12 does not in terms state
the grounds on which the permission of the local authority
to sanction development work may be withheld, it is clear
that the authority had to proceed on the basis of the
tentative plan. The legislature was aware that a good deal
of time might elapse before the Development Plan was finally
sanctioned and that is why provision was made for extension
of the period of four years, if need be from time to time.
After a declaration under s. 4 is made, the map is published
under r. 3 and the suggestions are received, the municipal
authorities must consider in the light of material before
them as to whether the intended building operations ought to
be sanctioned or not. Once the development plan was before
it, of course, there was no difficulty. In our opinion,
there was enough guidance in the Town Planning Act to enable
the Municipal Commissioner to come to a conclusion as to
whether a particular commencement certificate should be
granted or not and the power exercisable under the sections
was neither uncanalised nor arbitrary. In all these four
petitions, reasons were given as to why the commencement
certificate was withheld. It may be that the reason at
first given was not adhered to later on, but that was
because by then the plan had undergone a modification.
295
With regard to the complaint that the period of ten years
fixed under s. II (3) of the Act was too long, and an
unreasonable restriction on the rights of a land owner to
deal with his land as he pleased, it is enough to say that
in view of the immensity of the task of the local
authorities to find funds for the acquisition of lands for
public purposes, a period of ten years was not too long. In
this case, the authority had to deal with an area measuring
about 169 sq. miles or roughly an area measuring 17 miles X
10 miles which is larger than most of our big cities without
their suburbs. The preparation of a development plan for
such an area must take a considerable period of time.
We may also point out that this is not the first occasion
when the validity of this Act has been called in question
before this Court. In Manecklal Chhotalal & Ors. v. M. G.
Makwana and Ors.(1), objections were taken with regard to
the Town Planning Scheme No. 19 (Memnagar), Ahmedabad
prepared under the Act as amended by the Gujarat Amendment
and Validating Act, LII of 1963. There the declaration of
intention to prepare a town planning scheme was made under
s. 22(1) of the Act in respect of certain areas of land
which included some lands of the petitioners. On June 13,
1960, a draft Town Planning Scheme was prepared under s.
23(1) and it was published in the Gujarat Government Gazette
dated June 23, 1960. The petitioners submitted objections
and suggestions before the Town Planning Committee. After
consideration of the same, the second respondent forwarded
the Town Planning Scheme to the third respondent, the State
of Gujarat, under s. 28(1) of the Act. The third respondent
sanctioned the draft scheme and appointed a Town Planning
Officer. This officer issued a public notice in October
1961 inviting objections and suggestions from owners of
land. The petitioners again filed objections in November
1961 before the 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 first
notice issued by the Town Planning Officer, it was mentioned
that the petitioners were being allotted new plots measuring
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19,087 sq. yards as against two plots measuring 56,164 sq.
yds. It was stated that the value of the original plots was
Rs. 37,556 and of the new plots Rs. 14,315 and that in
consequence, the petitioners were entitled to compensation
of Rs. 23,241. The notice further stated that the value of
plots which were being allotted as new plots, 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 contribution at the rate of 50
% on the increment under s. 66 i.e. Rs. 60,638
(1) [1967] 3 S.C.R. 65.
296
and after giving credit to them for the sum of Rs. 23,241
they were called upon to pay Rs. 37,397. There was some
alteration in this and ultimately the petitioners were
informed that in lieu of plot 22 measuring 37,873 sq. yards
they were allotted plots measuring 20,123 sq. yards and the
value under S. 67 was fixed at Rs. 8,222. The final
position under these two notices was that the petitioners
were getting land of an extent of 35,558 sq. yards as
against the original extent of 70,180 sq. yards and they had
to pay a sum of Rs. 73,867 as contribution.
The main contention urged on behalf of the petitioners was
that the State Legislature was not competent to pass the Act
as it was not covered by any of the entries in List 11 or
List 111, of the Seventh Schedule to the Constitution; and
even assuming that the State Legislature could pass the Act,
nevertheless, its provisions regarding the levy of
contribution towards the cost of the Scheme and all other
matters relating to the working of the scheme were
unauthorised and unreasonable and that the powers vested in
the Town Planning Officer and other authorities under the
Act were unguided, arbitrary and uncontrolled and as such
infringed the fundamental rights of the petitioners under
Arts. 14, 19(1)(f) & (g) and 31 of the Constitution.
It will be noticed that there is a good deal of similarity
between that application and the present series of
applications although the objections raised are not quite
the same. In that case the Court examined the Act and the
scheme including ss. 3 to 17 in Chapter 11 dealing with
development plans. As noted already, Chapter III deals with
the making of Town Planning Scheme and the contents of a
Town Planning Scheme and Chapter IV deals with declaration
of intention to make a scheme and making of a draft scheme.
Chapters IV, V, VI, VII and IX were considered in some
detail as also r. 3 relating to the publication of the de-
claration under s. 4 and r. 4 dealing with the publication
of the development plan. The Court noted after referring to
the sections and the rules that a perusal thereof clearly
showed that elaborate provisions had 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 provided for objections which were being heard by the
authorities concerned. The objection that unfettered and
arbitrary power was vested in the Town Planning Officer in
the matter of deciding various points covered by s. 32 of
the Act was turned down. Ultimately, the Court said:
"........ having due regard to the substantive
and procedural 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 show that the grievance of
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the petitioners that Art. 14 is violated, is
also not accept,able."
297
In our opinion, apart from the aspect of the question that
the Act has been found, after consideration of its different
sections, to be a valid enactment, we are not impressed by
any of the arguments raised before us. The argument that a
person was given no opportunity of meeting the objections
raised by others with regard to the development plan has no
force in the light of the facts disclosed in the affidavits.
After all it is for the authority concerned to prepare the
plan after hearing all the parties concerned. If the
authorities were to hear all the parties with regard to all
the suggestions made giving them separate and independent
hearings, no development plan could ever be prepared. The
authority was not concerned with considering the advantages
or disadvantages which might accrue to a particular person
or a group of persons owning lands in different parts of the
area concerned, but it had to go by the larger interest of
the population at large and the generations to come. The
affidavits show that nothing was done haphazardly.
Suggestions and objections at all stages were carefully
considered. The assistance of committees of experts was
taken and the plan emerged, only after an immense amount of
labour had been bestowed on its preparation.
The second argument that s. 13 of the Act gave an uncon-
trolled and uncanalised power to the local authority to
refuse a commencement certificate arbitrarily cannot also be
accepted. As already noted, the development of an area like
Greater Bombay has to be guided and channeled in a
particular manner following well-defined plans. Public
amenities have to be provided, for-, lands set apart for
public purposes to be acquired by local authority to be
considered; industrialisation of the areas to be guided in
the view of the industries already existing, their probable
demands in future spacing out and such like objects. The
help of various associations was taken and suggestions of
the public received and discussed by an Advisory Committee.
Before the finalisation of the development plan, there was
already a tentative plan by which the local authority had to
guide itself. After a development plan was prepared, the
question was a simple one as to whether the commencement
certificate could be given without doing any violation to
the development plan. The fact that no appeal from the
decision under s. 13 was provided for is a matter of no
moment for the authority under s. 13 is no less than the
Municipal Commissioner himself or the Chief Officer of the
Municipal Borough or a person exercising the power of an
Executive Officer of any local authority. When the power
had to be exercised by one of the highest officers of the
local, authority intimately connected with the preparation
of the development plan in all its stages, it is difficult
to envisage what other authority could be entrusted with the
work of appeal or revision. The preparation of the
tentative plan or the final development plan was not
something which was left to the pleasure or discretion of
the local authority. Immense pains were taken by a vast
number of
298
people and it was their combined effort and skill which went
to the making of the development plan preceded by the
tentative plan. S. 13 prescribes that the local authority
should make an inquiry before granting or refusing a
commencement certificate. The Authority must therefore look
into all material available to it including the tentative
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plans and the final development plan and then make up its
mind as to whether a commencement certificate should be
granted or not. If the provisions of the Act are borne in
mind and the rules framed thereunder complied with, as
appears to have been done in these cases, there was little
or no scope for the local authority acting arbitrarily under
s. 13 of the Act.
We have already noted that the authority concerned com-
municated to the petitioners in Writ Petition No. 228 of
1966 as to why their prayer for the issue of a commencement
certificate could not be granted. The facts in the other
writ petitioners are on a close parallel. We also find
ourselves unable to accept the third contention that by the
combined operation of ss. 4 and 11(3) of the Act the local
authority could protract the acquisition of any land
designated for a public purpose under s. 7 of the Act at
least for 14 years and thereafter indefinitely. A similar
argument was put up before this Court in the case of Jyoti
Pershad v. Administrator for The Union Territory of
Delhi(1). The argument there put up about excessive
delegation of legislative power to an executive authority to
disregard rights to property of a person who had obtained a
decree for eviction indefinitely was turned down by this
Court. There it was said that the restriction of the power
of eviction would have to be determined by the speed with
which the authorities were able to make provisions for
affording the slum dwellers better living conditions. No
one can be heard to say that the local authority after
making up its mind to acquire land for a public purpose must
do so within as short a period of time as possible. It
would not be reasonable to place such a restriction on the
power of the local authority which is out to create better
living conditions for millions of people in a vast area.
The finances of a local authority are not unlimited nor have
they the power to execute all schemes of proper utilisation
of land set apart for public purposes as expeditiously as
one would like. They can only do this by proceeding with
their scheme gradually, by improving portions of the area at
a time, obtaining money from persons whose lands had been
improved and augmenting the same with their own resources so
as to be able to take up the improvement work with regard to
another area marked out for development. The period of ten
years ,fixed at first cannot therefore be taken to be the
ultimate length of time within which they had to complete
their work. The legislature fixed upon this period as being
a reasonable one in the circumstances obtaining at the time
when the statute was enacted.
(1) [1962] 2 S.C.R. 125.
299
We cannot further overlook the fact that modifications to
the final development plan were not beyond the range of
possibility. We cannot therefore hold that the limit of
time fixed under s. 4 read with s. 11(3) forms an
unreasonable restriction on the rights of a person to hold
his property.
Towards the end of the hearing counsel for the petitioners
submitted that s. 17 of the Act might be left out of
consideration for the purpose of these petitions and learned
counsel for the respondents were agreeable to this course.
We therefore do not express our views about the validity or
otherwise of this section.
In our opinion the objections raised as to the invalidity of
ss. 9, 10, 11, 1.2 and. 13 cannot be upheld.
As the petitioners have failed in their attempt to establish
any violation of their fundamental rights under the
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Constitution, the petitions will all be dismissed. The
petitioners will pay one set of costs.
R.K.P.S. Petitions dismissed.
300