Maneklal Chhotalal & Ors Vs. M. G.
Makwana & Ors  INSC 55 (2 March 1967)
02/03/1967 VAIDYIALINGAM, C.A.
RAO, K. SUBBA (CJ) SHAH, J.C.
CITATION: 1967 AIR 1373 1967 SCR (3) 65
CITATOR INFO :
RF 1968 SC 303 (31) RF 1977 SC2279 (27) RF
1981 SC1597 (3) RF 1986 SC 468 (20) R 1988 SC1708 (15)
Constitution of India, 1950, Arts. 14, 19 and
31; and Seventh Schedule, List II Entry 18, and List III, Entry 20Competency of
State Legislature to enact Bombay Town Planning Act (27 of 1955)-Act as amended
by Bombay Town Planning (Gujarat Amendment and Validating Provisions) Act (52
of 1963), if violative of fundamental rights.
The Ahmadabad Municipal Corporation
published, under s. 22 of the Bombay Town Planning Act, 1954, a declaration of
its intention to make a town planning scheme in respect of certain areas which
included the lands of the petitioners.
The petitioners submitted their objections
A draft Town Planning Scheme was published
thereafter under s. 23 (1) and the petitioners again submitted the same
objections. After considering the objections and suggestions, the draft scheme
was forwarded to the State Government under s. 28(1). The State Government
sanctioned the scheme under s. 28(2) and appointed a Town Planning Officer
under s. 31(1). He issued a public notice inviting objections and suggestions
from owners of land and the petitioners reiterated their objections. The Town
Planning Officer, thereafter, -aye his decision under s. 32 regarding the value
of the land originally owned by the petitioners, the extent of reconstituted
land allotted to them, the compensation payable to them, the value of the land
allotted to them taking into account the improvements in the Scheme and the net
amount payable by the petitioners as their share of the contribution towards
the cost of the Scheme. As a result of the decision, the petitioners were
allotted a much smaller extent of land than they originally owned and were
directed to pay certain sums as their share of the contribution. On appeal
under s. 34 the Board of Appeal slightly reduced the amount payable by the
petitioners. The petitioners thereupon filed a writ petition in this Court and
contended that : (1) the State Legislature was not competent to enact the
statute, and (2) the provisions Of the Act, by conferring arbitrary powers on
the authorities functioning under the Act and by depriving the petitioners of
their property infringed their fundamental rights under Arts. 14, 19(1)(f) and
HELD : (1) The heads of legislation in the
Lists of the Seventh Schedule to the Constitution should be given a large and
liberal interpretation unless cut down by the terms of the item itself or by
other part,,; of the Constitution, so that, they may have effect in their
Therefore, the various aspects dealt with in
the Act can be considered to deal with "land" in Entry 18 of List II
and the competency of the State Legislature can be found in that entry. [78
F-G; 79 A, C-D, G] Navinchandra Mafatlal V. Commissioner of Income-tax, Bombay
City,  1 S.C.R. 829, Sri Ram Ram Narain Medhi v. State of Bombay 
Supp. 1 S.C.R. 489 and Atma Ram v. State of Punjab,  Supp. 1 S.C.R. 748,
followed, 66 The Act is a legislation to consolidate and amend the law for the
making and execution of town planning schemes for the healthy and orderly
development of the area. With a view to achieve that purpose, a very elaborate
procedure and machinery is prescribed in the Act. Therefore, the competency of
the State Legislature could also be rested on Entry No. 20 of List III, which
deals with "Economic and Social Planning". [79 G-H; 80 H] (2)The Act
and the Rules make very elaborate provisions regarding the formalities to be
gone through, at every stage, by the local authority, the State Government and
other authorities concerned in preparing and making final the Town Planning
Scheme. At all stages, very wide publicity is given to the proposals. Provision
has been made for the filing of objections and suggestions and a duty is cast
on the authorities to take them into account. The procedure to be adopted by
the Town Planning Officer in the matter of giving his decisions on the various
aspects has been indicated in s. 32 and in the Rules made under the Act.
Principles have also been laid down regarding
the fixing of the value of the original and the reconstituted plots., and for
fixing the amount of contribution payable by the various owners of land. The
contribution was payable in easy installments and was towards the cost of the
scheme which the local authority had to incur and was not a tax or fee. All
important decisions of the Town Planning Officer are appealable to a Board of
Appeal presided over by a Judicial Officer of the status of a District Judge,
and the procedure to be adopted by the Board is also clearly indicated in the
Act and Rules. Therefore, the Act does not vest any arbitrary or unguided power
in the authorities and only imposes reasonable restrictions on the petitioners'
right to hold property. Hence, the Act is not violative of Art. 14 and is saved
by Art. 19(5). [71 C-D; 82 A-D, H; 83 A-B, G] The petitioners have no doubt
lost a large extent of land.
But. having due regard to the scheme of the
Act and the object sought to be achieved, such results are inevitable.
Moreover, the reconstituted plots, though of
a lesser area have a higher value in view of the various improvements, and so
what the petitioners lost in actual area had been more than sufficiently
compensated by the increased value.
Therefore,, there is no question of any
deprivation of property so as to attract Art. 31. [83 D-F]
ORIGINAL JURISDICTION : Writ Petition No. 64
Petition under Art. 32 of the Constitution of
India for the enforcement of fundamental rights.
B. Sen Tricumlal J. Patel and I. N. Shroff,
for the petitioners.
H. D. Banarjee, R. Ganapathy lyer, R. H.
Dhebar and S. P. Nayyar, for respondents Nos. 1, 3 and 4.
Purshottam Tricumdas, Vithalbhai Patel, O. C.
Mathur, J. B. Dadachanji and Ravinder Narain, for respondent no. 2.
D. R. Prem and S. P. Nayyar, for the
The Judgment of the Court was delivered by
Vaidialingam, J. In this writ petition, under Art. 32 of the Constitution, the
petitioners challenge the constitutional validity 67 of the Bombay Town
Planning Act, 1954 (Bombay Act XXVII of 1955) (hereinafter called the Act), as
originally framed, and also after its amendment, by the Bombay Town Planning
(Gujarat Amendment and Validating Provisions) Act, 1963 (Gujarat Act LII of
1963) (hereinafter called the Amending Act). They also challenge and seek to
have quashed, all action and proceedings that have been taken by the
respondents, under the Act, in relation to the Town Planning Scheme, No. 19
The circumstances under which the petitioners
have come to this Court may be briefly indicated. The petitioners, who are
stated to be members of a Hindu Undivided Family, owned certain extent of lands
in two areas viz., Usmanpur Section and Wadej Section. In the former, they
claim to have owned lands bearing survey numbers 41/1, 41/2 , 42, 51/1, 51/2
and 43, referred to as plot nos. 22 and 22-A, measuring 56,164 sq. yds. In
Wadej Section, again, they owned 14,520 sq.
yds, in survey nos. 106, 3/1, 106/4, referred
to as plot no.
195. Both these Sections are within the
jurisdiction of the second respondent herein, the Ahmedabad Municipal
The second respondent, by resolution No. 475,
dated August 20, 1959, declared its intention to make a Town Planning Scheme
No. 19 (Memnagar), under s. 22(1) of the Act, in respect of certain areas of
land, which included the abovementioned lands of the petitioners. The said
declaration was published in the Bombay Government Gazette, dated September 3,
1959. A notification was issued on November 16, 1959, stating that the second
respondent was preparing a Draft Town Planning Scheme, and stating that
interested persons may appear before the Town Planning Committee, on December
2, 1959, at 4 p.m., for the purpose of having the proposals contained in the
Scheme explained to the public and to elicit suggestions from the public with
regard to those, proposals.
The petitioners appeared before the said
Committee, on December 2, 1959, and raised certain objections, and also offered
some suggestions for modifying the Scheme. Written objections were also
submitted by the petitioners, on or about January 9, 1960. to the Town Planning
Committee. The petitioners pointed out that in Usmanpur and Wadej Sections they
owned lands to the extent, approximately, of 70,180 sq.
yds., but in the proposals as contained in
the Draft Scheme, they were expected to get only 19,087 sq. yds. and, as such,
they stood to lose nearly 72 % of their lands. They also pointed out that they
had been made liable to pay a heavy contribution of Rs. 30,13'//-. The
petitioners suggested that the loss to each land-owner, should be equitably
distributed under the Scheme and that they should be allotted lands of equal
68 On June 13, 1960, a Draft Town Planning
Scheme was prepared, under s. 23(1) of the Act, and it was published in the,
Gujarat Government Gazette, dated June 23, 1960. The petitioners, again,
submitted the same objections and suggestions, which they had placed for
consideration, before the Town Planning Committee. After considering the
objections and suggestions made by the petitioners, the second respondent
forwarded the Draft Town Planning Scheme to the third respondent, the, State of
Gujarat, under s. 2 8 ( 1 ) of the Act. The third respondent, again, sanctioned
the said Draft Scheme, under S. 28(2) of the Act and also appointed a Town
Planning Officer, under s. 31(1) of the Act. Subsequently, there was a change
in the personnel of the Town Planning Officer, originally appointed.
Ultimately, the Town Planning Officer issued
a public notice in October 1961, inviting objections and suggestions from
owners of lands in respect of the Draft Town. Planning Scheme, which was being
considered by him.
The petitioners, again, filed objections in
November 1961, before the said Town Planning Officer, and here also they
reiterated the same objections and suggestions which they had placed before the
Town Planning Committee at the earlier stage, and before the second respondent,
In the Draft Scheme prepared by the second
respondent, and sanctioned by the State of Gujarat, the petitioners' lands,
survey nos. 41/1, 41/2, 5111, 51/2 (being plot no. 22) and survey no. 43 (being
plot no. 22A) were shown as item no.
18, and lands, survey nos. 106, 3/1 and 106/4
(plot no. 195) were shown as item no. 163. The Town Planning Officer issued
notices in April and June 1962, to the petitioners.
In the first notice, it was mentioned that
the petitioners were being allotted new plots, nos. 32, 34 and 43, measuring
19,087 sq. yds as against plots nos. 22 and 22-A, measuring 56,164 sq. yds. It
was also stated that the value of the original plots nos. 22 and 22-A, was Rs.
37,556/-and of the new plots nos. 32, 34 and 43, was Rs. 14,315/-and that, in
consequence, the petitioners were entitled to apayment of compensation, under
s. 67, in the sum of Rs. 23,241/-. The notice further stated that the value of
plots nos. 32, 34 and 43, after taking into account the improvements in the
Scheme, was Rs. 1,35,590/-, and, after deducting the price of those plots,
without reference to the improvements, viz., Rs. 14,315/-, the increase, under
s. 65 of the Act, was Rs.
1,21,275/-. The petitioners were therefore
liable to pay a contribution, under s. 66, at the rate of 50% on the increment,
viz., Rs. 60,638/-; and after giving credit to the petitioners, in the sum of
Rs. 23,241/-, they were called upon to pay a sum of Rs. 37,397/-.
69 The second notice also mentioned that, as
against the petitioners' plot no. 195, measuring 14,520 sq. yds., no other plot
was being allotted to them and that the compensation payable to them in respect
of the said plot, without reference to the 'improvements in the Scheme, was Rs.
7,260/-. By virtue of these two notices, the
petitioners were being allotted fresh plots of an extent of 19,087 sq.
yds., and they were called upon to pay a sum
of Rs. 30,133/, as their share of contribution, and they were also required to
furnish their objections or suggestions, within the time specified. The petitioners
filed their written objections to the proposals contained in the said two
notices; and they also appeared on the dates mentioned in the notices and
reiterated the matters contained in their written objections.
The first respondent herein, the Town
Planning Officer, issued on January 20, 1965, two communications, stated to be
his award, under s. 32(3) of the Act. In the first of these communications, the
petitioners were informed that in lieu of their plot no. 22, measuring 37,873
sq. yds., they were allotted Final Plots nos. 52, 54 and 57, measuring 20,183
sq. yds., and the value, under s. 67 was fixed at Rs.
8,222/-. The petitioners were also informed
that the calculation of increment of the value of 20,183 sq. yds allotted to
them, under s. 65, was Rs. 1,08,483/and, at the rate of 50%, as per s. 66 of
the Act, they were liable to pay a contribution of Rs. 54,241/-. After
adjusting the value of the lands, of Rs. 8,424/, the net contribution payable
by the petitioners was stated to be Rs. 45,817/-.
Similarly, in the second communication, the
petitioners were informed of the allotment of final plot no. 94, measuring
15,375 sq. yds, as against plot nos. 22A and 195 measuring in the aggregate
32,307 sq. yds. The petitioners were further informed that for the loss of
16,932 sq. yds. they would be entitled to compensation under s. 67, in the sum
of Rs. 4,622/-. The calculation of increment, with reference to improvement in
respect of the final plots allotted as per s. 65, was stated to be Rs. 65,344/-.
In consequence, the share of contribution, under S. 66, payable by the
petitioners at the rate of 50%, was fixed in the sum of Rs. 32,672/-. Adjusting
the sum of Rs. 4,622/-. being the compensation payable to the petitioners,
their net liability, as contribution, was fixed in the sum of Rs. 28,050/-.
The final position, under these two notices,
was that the petitioners were getting land of an extent of 35,558 sq.
vds., as against the original extent of land
of 70,1 80 sq.
yds., and they had to pay a sum of Rs.
The petitioners preferred appeals to the
Board of Appeal, under s. 34 of the Act. The Board of Appeal reduced the 70
increased value of the final plots by giving a general reduction of 60 paise
per square yard. As a result of the appeal, the petitioners had still to pay a
contribution of a sum of Rs. 63,199/-, apart from losing 34,622 sq. yds., of
land. The Town Planning Officer made consequential changes in his original
award, incorporating the decision of the Board and forwarded the final Scheme
to the State Government for its sanction. It is, at that stage, the petitioners
have come to this Court, seeking the reliefs mentioned above.
The main contentions raised by Mr. B. Sen,
learned counsel for the petitioners, are: (i) The State Legislature was not
competent to pass the Act as the subject, dealt with under the Act, is not
covered by any of the entries in List 11, or List 111, of the Seventh Schedule
to the Constitution. (ii) Even assuming that the State Legislature could pass
the Act in question, nevertheless, the provisions regarding the levy of
contribution towards the cost of the Scheme and all other matters relating to
the working of the scheme, are unauthorised and unreasonable and that the
powers vested in the Town Planning Officer, and the other authorities, under
the Act, are unguided, arbitrary and uncontrolled and, therefore, the
provisions of the Act infringe the fundamental rights of the petitioners under
Arts. 14, 19(1) (f) & (g), and 31 of the Constitution.
On behalf of the State, the third respondent,
Mr. H. D. Banarjee, learned counsel, has pointed out that the-State Legislature
was competent to pass the Act in question. In particular, he supports the
competency of the Legislature to enact the measure in question, on the basis of
6 and 18 of List II, and Entry no. 10 of List
111, of the Seventh Schedule. Counsel also points out that a local authority,
with a view to achieve a systematic and proper planning, providing amenities
like water-supply, drainage, roads, etc., has been empowered to go in for a
town planning scheme. After providing for these amenities, and allotting sites
for public purposes like schools, hospitals, markets, police-stations etc., the
remaining lands are re-constituted by changing their boundaries in order to
make the areas capable of being properly developed. Re-constituting of the
plots is absolutely necessary inasmuch as in working out the Scheme, some area
from an adjoining land may have to be added and some other area from the
original holding may have to be taken away, as may be necessary, and to achieve
the purposes for which a planned development scheme is framed.
As far as possible, each owner of land is
given a new plot, though it may not be of the same extent or in the same area,
And, in exceptional cases, when the owner loses a holding alto-ether, he is
71 By reference to the Act and the rules
framed thereunder, counsel pointed out that elaborate provisions have been made
as to how the local authorities, in framing the Scheme, had to function. as
also how the Town Planning Officer, who works the Scheme, has to act.
Opportunity had been provided, at every stage, right from the beginning to the
end, counsel points out, to owners of property, like the petitioners, to place
their objections and suggestions. The petitioners also had taken advantage of
those provisions and had been heard and their objections considered. All the
important decisions of the Town Planning Officer are made the subject of
appeals to a Board of Appeal, of which the President is anexperienced judicial
officer of the status of a District Judge. Principles had also been laid down
by the Act regarding the fixing of valuation of the original plots and the
-reconstituted plots and for fixing the amount of contribution payable by
parties. Payment of contribution was to be in easy installments. None of the
fundamental rights of the petitioners, according to Mr. Banajee, bad been
These contentions of the State have been
supported by Mr. Purshottam Tricumdas, learned counsel appearing for the Ahmadabad
Municipal Corporation, the second respondent herein.
This will be a convenient stage to refer to
the scheme of the Act and consider the question as to whether the State
Legislature is competent to enact this legislation, because, if the contentions
of the learned counsel for the petitioner that the State Legislature had no
competence to enact this measure is accepted, no other questions will arise for
There was. originally, an Act called the
Bombay Town Planning Act, 1915 (Bombay Act I of 1915), which has been repealed
by s. 90(1 ) of the Act. The object of the 1915 Act is stated to be 'to provide
for the making and execution of town planning schemes'. The preamble to the
said legislation stated that it was found expedient that the development of
certain areas should be regulated with the general object of securing proper
sanitary conditions, amenity and convenience to the persons living in such areas
and in neighbouring areas. We only refer to the 1915 Act for the limited
purpose of showing that the said Act was conceived with the intention of
regulating the development of certain areas for the purpose of securing proper
sanitary conditions etc.. to the persons living not only in such areas, but
also in neighbouring areas.
The Act came into force on April 1, 1957,
and, there is no controversy, that it has been made applicable to the State of
Gujarat. In some respect the Act was amended by the Amending Act of 1963. The
Act is a legislation to consolidate and amend the law for the making and
execution of town planning schemes, and, in order to ensure that town planning
schemes are made in a proper manner and their execution is made effective.
Sub-sections (2), (4), (6) and (9) of S. 2, define the expressions 'development
plan', 'local authority', 'plot' and 'reconstituted plot'. In particular, the
expression 'reconstituted plot' means a plot which is in any way altered by the
making of a town planning scheme.
Sections 3 to 17, in Chapter 11, deal with
development plans. Section 3 makes it obligatory on a local authority to carry
out a survey of the area within its jurisdiction and to prepare and publish, in
the prescribed manner, a development plan and to submit the same to the State
Government for sanction. Sub-section (4) of s. 3 gives power to the State
Government to prepare and publish, in the prescribed manner, a development
plan, in the circumstances mentioned therein. Section 4 provides for the local
authority making a declaration of its intention to prepare a development plan,
before carrying out a survey for the purpose of preparing the said plan, and a
copy of the said declaration is to be sent to the State Government for
publication in the Gazette. It also .provides for the declaration being
published in the prescribed manner and for inviting suggestions from the public
within two months of the date of publication. A copy of the development plan is
to be sent to the State Government and another copy is to be made available, by
the local authority, for inspection by the public. Under s. 7, the development
plan has to indicate the manner in which the development and improvement of the
area is to be carried out and regulated, and it shall contain the proposals
mentioned in clauses (a) to (e). The particulars referred to in s. 8 have to be
published and submitted to the State Government, along with the development
plan. Section 9 provides for the local authority considering any suggestions
that may be made to such development plan, by any member of the public, if
those suggestions are communicated in writing, within two months from the date
of publication. Section 10 gives power to the State Government, after
consulting the Consulting Surveyor, to sanction the development plan submitted
to it by the local authority, either without modification or subject to such
modification as it considers necessary. The sanction of the State Government
has to be notified in the Official Gazette. Section II gives power to the local
authority to acquire either by agreement or under the Land Acquisition Act of
1894, any land designated in the development plan for a Purpose specified in
clauses (b) to (e) of s. 7. The remaining sections in Chapter 11, deal with
matters like placing restriction on an owner doing any work on the land, after
publication of the declaration of intention under s. 4(1), and the local
authority granting permission to the owners concerned.
73 Chapter III, comprising ss. 18 to 20,
deals with the making of and the contents of a town planning scheme. Section 18
provides for a local authority, subject to the provisions of the Act, or any
other law for the time being in force, making one or more town planning schemes
for the purpose of implementing the proposals contained in the final
development plan. The town planning scheme can provide for any of the matters
mentioned in cls. (a) to (1) referred to in sub-s. (2) of s. 18. Section 19
relates to a decision being given by the Town Planning Officer, relating to
disputed ownership of the properties comprised in the scheme but it is made
clear that any decision given by him, though not subject to appeal, shall not
operate as a bar to a regular suit. It also makes provision for any decision
given on this question by the Town Planning Officer being corrected, modified
or rescinded in the event of a Civil Court making an adjudication. Section 20,
is an enabling provision for the purpose of making or executing any town
Sections 21 to 30, which occur in Chapter IV,
deal with the declaration of intention to make a scheme and the making of a
draft scheme. A Town Planning Scheme, under s. 21, may be made, in accordance
with the provisions of the Act, in respect of a land which is in the course of
development, or is likely to be used for building purposes, or is already built
upon. Section 22 authorises a local authority to declare its intention to make
a town planning scheme by resolution. The local authority is to publish its
declaration, within the time mentioned therein; and it is also bound to
despatch a copy thereof to the State Government, along with a plan showing the
area which it proposes to include in the. scheme. Sub-s. (4) of s. 22 provides
for a copy of the plan being made available to the public for inspection.
Section 23 provides for the local authority, in consultation with the
Consulting Surveyor, to make a draft scheme within twelve months of its
declaration of intention and publish the same in the prescribed manner.
Section 24 gives power to the State
Government, in the circumstances mentioned therein, to require a local
authority to make and publish a draft scheme and send it to the Government for
approval. Section 25 specifies the various particulars which a draft scheme should
contain Section 26 provides that in the draft scheme, the size and shape of
every reconstituted plot is to be determined in such a manner as to make it
suitable for building purposes.
If the plot is already built upon, it
provides that the reconstitution is to ensure that the building, as far as
possible, complies with the provisions of the scheme as regards open spaces.
Sub-section (2) of s. 26 specific.,, the nature of proposals, to be found in
the draft scheme.
In particular, it provides for a reconstituted
plot being formed by alteration of the boundaries of the original plot;
formation of reL4 Sup. Cl/67-6 74 constituted
plot by the transfer, wholly or partly, of the adjoining lands; for allotting a
plot to any owner dispossessed of land in furtherance of the scheme and for
transfer of the ownership of a plot from one person to another. It may be
stated, at this stage, that, as wilt be seen from sub-cl. (d) of s. 26(2), the
intention of the Act appears to be that the Town Planning Scheme should, as far
as possible, make the provisions for allotment of plots, to owners, who are
being dispossessed of their property.
Section 27 relates to filing of objections,
within one month from the date of publication of the draft scheme, and the
local authority being bound to consider those objections and making suitable
modifications, as it thinks fit, before submitting the draft scheme to the
State Government. Under sub-s. (1) or s. 28, the local authority has to
forward, within the time mentioned therein, the draft scheme, together with any
modifications made by it, along with the objections that may have been filed by
persons affected by such scheme and make an application to the State Government
for sanctioning the same. Sub-s. (2) provides for the State Government, after
making such enquiry as it thinks fit and, after consulting the Consulting
Surveyor, sanctioning the Scheme with or without modifications; and the
sanction is to be published in the State Gazette. Sub-s. (3) makes it
obligatory when the State Government sanctions the scheme, to state in the
notification itself, about the place and time the draft scheme will be open to
the public for inspection.
Chapter V. in which ss. 31 to 43 are to be
found, deals with the Town Planning Officer and the Board of Appeal. Section 31
deals with the appointment of a Town Planning Officer, by the State Government,
within one month from the date, on which its sanction to the draft scheme is
published. It also provides for the State Government removing the said officer
and appointing another officer, in circumstances mentioned therein. Section 32
enumerates the duties of the Town Planning Officer. He is to act in accordance
with the prescribed procedure, and decide the various matters mentioned in cls.
(i) to (xiv) of S. 32 (1 ). Among other matters, the Town Planning Officer has
to fix the difference between the total values of the original plots and the
total of the values of the plots included in the final scheme;
estimate the portion of the sums payable as
compensation on each plot used, allotted or reserved for a public purpose or
purpose of the local authority which is beneficial to the owners and residents
within the area of the scheme and partly to the general public and which are to
be included in the cost of the scheme estimate the increment to accrue in
respect of each plot included in the final scheme; calculate the proportion in
which the increment of the plots included in the final scheme shall be liable
to contribution to the costs of the scheme; calculate the contribution 75 to be
levied on each plot included in the final scheme;
determine the amount to be deducted from, or
added to, as the case may be, in the contribution leviable from a person and
provide for the total or partial transfer of any right in an original plot to a
reconstituted plot or provide for the extinction of any right in an original
Section 33 makes the decision of the Town
rendered under s. 32(1), final and
conclusive, except in matters arising out of cls. (v), (vi), (viii), (ix), (x)
and (xiii) of sub-s. (1) of s. 32. Section 34 provides for decisions given by
the Town officer under the clause as shown above being communicated to the
party concerned and it t right to any person aggrieved by that decision, to
appeal, within one month from the date of communication of the decision, to the
Principal Judge of City Civil Court, Bombay, in Greater Bombay and elsewhere,
to the District Judge. The appeal is to be disposed of by a Board of Appeal
constituted under s. 35, according to which it should consist of a President
and two Assessors, the President being the Principal Judge of the City Civil
Court in Greater Bombay, or such other Judge of the said Court as may be
appointed by the State Government, and elsewhere, the District Judge. Section
35 provides for the appointment of fit and proper persons as Assessors, who are
to sit with the President to constitute the Board of Appeal to decide an cls.
(v), (vi), (viii), (ix) (x) (xiii) of s. 32(1).
Section 40 provides for the Town Planning
Officer being required to modify or vary his decision in accordance with the
decision of the board of apple and the decision of the board of appeal being
final and conclusive and binding on all persons. Section 13 provides for the Town
Planning Officer forwarding to the State Government, the final scheme as varied
by him, in accordance with he decision, if any, of the Board of Appeal, along
with his decision'. and a copy of the decision of the Board in appeal.
Chapter VI. which comprises ss. 44 to 61,
relates to the splitting up of schemes into sections and preliminary schemes.
Section 3 lays down the effect of a final scheme, and states that when it has
come into force, all lands required by the local authority, unless otherwise
provided, should vest in the local authority absolutely free from all
encumbrances and all rights in the original plots which have been reconstituted
being determined and the reconstituted plots becoming subject to the rights
settled by the Town Planning Officer.
Chapter VII consists of ss. 62 and 63 and
deals with joint own planning schemes. Chapter VIII. which comprises ss. 64 to
78, deals with finance. Section 64 refers to what all items 76 shall be
included in the costs of a town planning scheme.
The difference between the total values of
the original plots and the total values of the plots included in the final
scheme, which is to be fixed under s. 32(1)(iii) by the Town Planning Officer,
is to be arrived at in the manner provided in S. 64 (1) (f ) . Broadly, the
estimate that is to be made of the value of the original plots and the value of
the plots included in the final scheme, is to be on the market value at the
date of the declaration of intention to make a scheme, without reference to
improvements contemplated in the scheme. The estimate of the increment that
accrued in respect of each plot included in the final scheme and which is to be
fixed by the Town Planning Officer, under S. 32(1) (viii), is again to be done
in accordance with the provisions of s. 65. Here again, it will be seen that
the estimate that is to be made is the market value of a plot included in the
final scheme, as on the date of the declaration of intention to make a scheme,
on the assumption that the scheme has been completed and the market value of
the said plot on the same date, without reference to the improvements
contemplated in the scheme, has been taken into account. Section 66 relates to
contribution towards costs of the scheme and the Town Planning Officer must have
regard to these provisions when fixing the proportion of contribution of a plot
included in the final scheme under S. 32(1)(ix). Again, in determining the
amount to be deducted from, or added to, . the contribution leviable from a
person under s. 32 (1) (xi), the provisions of s. 67 will have to be applied.
The total or partial transfer of right in an original plot to a reconstituted
plot, as well as the extinction of any right in an original plot, which has to
be decided by the Town Planning Officer, under s. 32 (1) (xii), must be in
accordance with the provisions of s. 68.
Section 71 provides for payment of
compensation to the owner of an original plot who is not provided with a plot
in the final scheme or if the contribution to be, levied from him under s. 66 is
less than the total amount to be deducted there from under any of the
provisions of the Act. Section 73 provides for payment, by the local authority,
by adjustment of account, of payments due to be made to any person.
Chapter IX deals with various miscellaneous
Section 87 provides for rules being made by
the State Government for carrying out the purposes of the Act; and, under
sub-section (2) the State Government has got the power to make rules in respect
of the various matters mentioned in clauses (a) to (w).
The Act was amended, with retrospective
effect, by the Amending Act of 1963.
Section 3 of the Amending Act has deleted the
original clause (1)of s. 18 and substituted a new clause in its place. Claus-.
77 (i) in the proviso to sub-s. (1) of s. 66,
has been substituted by a new clause. That relates as to how exactly the cost
of the scheme is to be met. Section 7 of the Amending Act validates certain
actions taken and things done and, in particular, cl. (a) of this section
provides that the validity of a Town Planning Scheme already sanctioned or
continued as sanctioned, cannot be called in question merely on the ground that
a development plan, in respect of the area to which the Town Planning Scheme
relates, has not been prepared, published or sanctioned before the Town
Planning Scheme was sanctioned or continued.
One of the contentions advanced before us, by
learned counsel for the petitioners, was that the Town Planning Scheme which is
under attack, has been framed without previously complying with the provisions
of Chapters 11 and III of the Act and, therefore, the entire proceedings are
illegal and void. But this contention, in our opinion, has not been, rightly,
pursued further, in view of the retrospective nature of the Amending Act. No
doubt, according to the petitioners, the Act as well as the Amending Act, are
both void because the Legislature had no competency to enact these statutes.
That is a different aspect, which will be dealt with by us presently.
Under s. 87 of the Act, the State Government
has framed rules on November 15, 1955, called the Bombay Town Planning Rules,
1955, hereinafter called the Rules. It is only necessary to run through some of
the material provisions of these rules.
Rule 3 relates to the publication of the
declaration, under s. 4. Rule 4 deals with the publication of the development
plan. Rule 12 relates to publication of the -declaration under s. 22. Rule 13
deals with the meeting of owners of land and formulating of tentative
proposals. Rule 14 deals with the publication of draft schemes under s. 23.
Rule 17 enumerates the various particulars to be incorporated in a draft
scheme, apart from the particulars specified in cls.
(a) to (g) of s. 25. Rule 21 deals with the
procedure to be followed by the Town Planning Officer. Rule 23 deals with the
procedure to be adopted by the Board, on appeal. Rule 33 deals with the manner
of serving notices; and r. 34 deals with proceedings of local authorities.
We have only broadly referred to some of the
rules. A perusal of the rules clearly shows that elaborate provisions have been
made for giving as wide a publicity, as possible, at all stages, to the public
and to owners of land, who may be affected by the scheme. They provide for
objections being filed, and their being heard by the authorities concerned. The
rules also deal, elaborately with various other matters relating to the scheme,
dealt with by the Act.
78 The first question that arises for
consideration is regarding the competency of the State Legislature to enact the
statute in question, According to Mr. Sen, learned counsel for the petitioners,
the Act provides for transfer of rights, from one person, in a plot originally
owned by him, to another person to whom it may be allotted under the Act. The
Act also provides for extinguishment of rights of the original owner in the
plots concerned. These are, according to learned counsel, not covered by any of
the entries either in List 11 or List III of the Seventh Schedule to the
Constitution. Again, it is pointed out, that the Act requires owners of the
plots to pay compensation which is really, so to say, a tax levied by the State
on capital assets, for which also there is no power to be found in any of the
Entries in List H or List 111.
The State seeks to justify the competency of
the Legislature, relying upon the Entries Nos. 6 and 18 of List 11 and Entry
No. 20 of List III, of the Seventh Schedule.
Having due regard to the scheme of the Act as
well as the provisions contained in it, in our opinion, the competence of the
State Legislature to enact the same can be rested either on Entry No. 18 of
List II, or on Entry No. 20 of List III, of the Seventh Schedule. Entry No. 18
of List 11 is as follows :"Land, that is to say, rights in or over land
tenures including the relation of landlord and tenant, and the collection of
rents; transfer and alienation of agricultural land improvement and
colonization." The legislation, in
question, can be broadly stated to be a legislation in regard to land. As
pointed out by this Court in Sri Ram Narain Medhi v. The State of Bombay(1).
"It is well-settled that these heads of
legislation should not be construed in a narrow and pedantic sense but should
be given a large and liberal interpretation".
Further, in Navinchandra Mafatatlal v. The
Commissioner of Income-tax, Bombay City(2), this Court expressed the rule of
interpretation, as follows :"The cardinal rule of interpretation, however,
is that words should be read in their ordinary, natural and grammatical meaning
subject to this rider, that in construing words in a constitutional enactment
conferring legislative power the most liberal construction should (1) 
Supp, 1 S.C.R. 489,496.
(2)  1 S.C.R. 829,836.
79 be put upon the words so that the same may
have effect in their widest amplitude." In construing Entry No. 18, of
List III, this Court, in Atma Ram v. The State of Punjab(1), adopted the
interpretation placed by the Judicial Committee of the Privy Council in Megh
Rai v. Allah Rakhia(2), while construing Item 21 of List II (Provincial List)
of the Seventh Schedule to the Government of India Act, 1935, which was more or
less substantially, in terms of Entry No. 18 of List II of the Seventh Schedule
to the Constitution. Their Lordships of the Privy Council concluded that Item
21 relating to land, would include mortgages as an incidental and ancillary
subject. This Court, in referring to that decision, observed at p. 755 :
'Their Lordships observed that Item 21
aforesaid, forming a part, as it did, of the Constitution, should on ordinary
principles, receive the widest construction, unless, for some reasons, it is
cut down either by the terms of that item itself, or by other parts of the
Constitution, which have, naturally, to be read as a whole; and then proceeded
to make the following very significant observations :"As to item 21,
'land', the governing word, is followed by the rest of the item, which goes on
to say, 'that is to say'. These words introduce the most general
concept--rights in or over land'. `Rights in land' must include general rights
like full ownership or leasehold or all such rights. 'Rights over land' would
include easements or other collateral rights, whatever form they might take.
Then follow words which are not words of limitation but of explanation or
illustration, giving instances which may furnish a clue for particular
The various aspects dealt with in the Act, in
question, can be considered to deal with 'land', and, accordingly, the
competency of the State Legislature to enact the measure, in question, can be
found in Entry No. 18.
We are further satisfied that the competency
of the State Legislature can also be rested under Entry No. 20, of List III,
which is as follows:"20. Economic and social planning". In Principles
of Town & Country Planning by Lewis Keepl the scope of planning has been
stated thus (1)  Supp. 1 S.C.R. 748, 756.
(2) L.R. 741.A. 12.
80 planning has both social and economic
Socially, successful Planning tends to make people's
lives happier because it results in a physical environment which conduces to
health, which allows convenient and safe passage from place to place, which
facilitates social intercourse and which has visual attractiveness. The
economic results of good Planning also, of course, conduce to increased
happiness, but not quite so directly. A proper spatial relationship between the
communities in a region and the constituent parts of a town, compactness of
development, and an efficient arrangement of communication routes all result in
human activities being carried on more efficiently and less wastefully, and
thus increase wealth;" In Corpus Juris Secundum, Vol. 70, the word
"planning" is stated to mean:
"In connection with municipalities, the
term connotes a systematic development contrived to promote the common interest
in matters embraced within the police power, with particular reference to the
location, character, and extent of streets, squares, parks, and to kindred
mapping and charting." In Encyclopedia Britannica, Vol. 5, p. 815
"City Planning" is stated to mean :
"the guidance of the growth and change
of urban areas. As such, it is aimed at fulfilling social and economic
objectives which go beyond the physical form and arrangement of buildings, streets,
parks, utilities and other parts of the urban environment. City planning takes
effect largely through the operations of government and requires the
application of specialized techniques of survey, analysis, forecasting and
design. Thus city planning may be described as a social movement, as a
governmental function, or as a technical profession. Each aspect has its own
concepts, history and theories. Together they fuse into the effort of modem
society to shape and improve the environment within which increasing
proportions of humanity spend their lives : the city." We have already
very elaborately referred to the various provisions contained in the Act; and
we have also pointed out that the original Act of 1915 was passed with a view
to regulate the development of certain areas with the general object of framing
proper schemes for the healthy, orderly, development of the area in question
and it is, with a view to achieve this purpose 81 that a very elaborate
procedure and machinery has been prescribed in the Act. Therefore, the
contention of learned counsel for the appellant that the State Legislature was
not competent to enact the statute, in question, cannot be accepted.
The further contention of the learned counsel
for the appellant, we have already pointed out, is that unguided and uncontrolled
power has been vested in the authorities concerned in the matter of framing the
scheme and that no principles have been laid down in the Act as to how exactly
an allotment has to be made of the lands in question to the original owners.
According to learned counsel, no principles have been laid down as to how
exactly compensation, which is made payable to parties like his clients, is to
be calculated. On these grounds, counsel points out, the fundamental rights
guaranteed to his clients, under Arts. 14, 19 and 31 of the Constitution, have
On behalf of the State, it is pointed out
that in view of the Proclamation of Emergency which is in operation, the
petitioners are not entitled to claim any fundamental rights under Art. 19 of
the Constitution. Alternatively,. it is pointed out that, in any event, having
due regard to the various provisions of, the Act and the object sought to be
achieved, the Act in question can be considered to impose reasonable
restrictions and therefore the legislation is valid under Art. 19(1)(f) of the
We do not think it necessary to go into the
question in this case, as to whether the petitioners are at all entitled to
invoke Art. 19 of the Constitution. On the assumption that they are entitled
to; we shall consider as to whether the Act, in question, can be sustained
under Art. 19(5), as imposing reasonable restrictions on the exercise of the
rights conferred on the petitioners under Art. 19(1)(f).
The principles to be borne in mind in
applying Arts. 14 and 19, of the Constitution are now well settled. A
fundamental right to acquire, hold and dispose of property, can be controlled
by the State only by making a law imposing, in the interest of the general
public, reasonable restrictions on the exercise of the said right. Such
restrictions on the exercise of a fundamental right shall not be arbitrary, or
excessive, or beyond what a required in the interest of the general public. The
reasonableness of a restriction shall be tested both from substantive and
procedural aspects. If an uncontrolled or unguided power is conferred, without
any reasonable and proper standards or limits being laid down in the enactment,
the statute may be challenged as discriminatory. Bearing these principles in
mind, the question is whether the grievance of the petitioners in this regard,
is well-founded. No doubt. it is seen that the petitioners, as stated earlier,
have been allotted, under the Scheme, a smaller extent of land and they have
also been directed to pay 82 certain amounts as their share of contribution.
But, having due regard to the scheme of the Act and the object sought to be
achieved, such results are inevitable. At every stage, from the be,-inning to
the end, we have already indicated, the Act and the Rules, make very elaborate
provisions regarding the formalities to be gone through, by the local
authority, by the State Government and by the other authorities concerned, in
the matter of preparing and finalizing a Town Planning Scheme. At all stages
very wide publicity is given, by the authorities concerned, in the matter of
making known its proposals to the public and to the owners of land, who are
sought to be affected by the Scheme. Provisions have been made for filing of
objections and suggestions and the authorities being bound to take into account
those objections and suggestions. The procedure to be adopted by the Town
Planning Officer, in the matter of giving his decisions, on the various aspects
referred to in s. 32, has been not only indicated in that section, but also
provided for, under the Rules.
It is also seen, from the affidavit of the
petitioners themselves, that at all relevant stages, they have filed objections
or suggestions before the appropriate authorities. Nor are we impressed with
the contention advanced on behalf of the Petitioners that there has been
unfettered and arbitrary power vested in the Town Planning Officer in the
matter of deciding the various points covered by s. 32 of the Act. We have
already indicated that the procedure to be adopted by the Town Planning Officer
has been dealt with elaborately, by the relevant rules. As to how exactly he
has to decide the particular matters, referred to in cls. (iii), (viii), (ix),
(xi) and (xii) of s. 32(1) of the Act, have been indicated in the reference
made by those sub-clauses to ss. 64, 65, 66, 67 and 68, respectively. Those
sections have also been referred to by us earlier, and they give very clear
indication as to what matters are to be adverted to by him, when a matter has
to be decided in accordance with those sections.
It is also seen from cl. (e) of s. 26 (2 ) of
the Act, that the primary intention in a draft Town Planning Scheme is to allot
a plot to any owner dispossessed of land. With reference to very, few people,
to whom it may not be possible to allot any land, s. 71 comes into operation.
Therefore, it will be seen that it is riot as
if the Town Planning Officer is left with any unguided discretion and arbitrary
power in dealing with matters under 32(1).
No doubt, every decision given by the Town
Planning Officer, under s. 32, is not appealable; but the important decisions
that are to be given by him, for instance, under cls. (v), (vi), (viii), (ix),
(x) and (xiii), are appealable under s. 34 to a Board of Appeal, which is
presided over by a Judicial Officer of the standing of a District Judge. The
procedure to be adopted by that Board is also clearly indicated in the rules.
It is, after all-these matters are gone through, that ultimately, the State
Government sanctions the final Scheme.
Therefore, having due regard to the
substantive and 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 ,.how that the
grievance of the petitioners that Art. 14 is violated, is also not acceptable.
The petitioners, no doubt, urge that a very
exhorbitant price is being fixed by the Town Planning Officer regarding the
value of the reconstituted plots allotted to them.
Those are matters of detail, and they are
covered by the provisions of the Act referred to above.
The petitioners, no doubt, make a grievance
of their having lost a fairly large extent of land, which, according to them,
amounts to deprivation. We are not satisfied that the petitioners' grievance is
well-founded in this regard.
Though the petitioners may have originally
owned larger extents of land, in different areas, which may or may not be fit
for building purposes, there can be no controversy, that the reconstituted
plots, though of a lesser area, have a higher value, as building sites, in view
of the various improvements and amenities provided under the Town Planning
Scheme. What parties, like the petitioners, may live lost in actual area of
lands, can certainly be considered to have been more than sufficiently
compensated by the increased value of the reconstituted plots. There is no
question of any deprivation of property, therefore, so as to attract.
The petitioners make a grievance that they
have to pay fairly large amounts by way of contribution to the Scheme.
No doubt, the petitioners' stand appears to
be that the amount collected or demanded is really a tax, or fee, at any rate,
which also the local authority has no right to ask for. Here again, the matter
will have to be approached in an entirely different way. The amount that the
petitioners have been asked to contribute is only towards the cost of the Scheme,
which has to be incurred by the local authority.
As to how exactly that contribution is to be
worked out and the proportion in which the plots are to bear that burden, have
all been indicated in the Act. Therefore, the liability of the petitioners to
pay contribution has to be upheld, once we come to the conclusion that the Act,
as a whole, will have to be sustained.
Both the contentions of the petitioners fail,
The writ petition. is, accordingly, dismissed with costs of the respondents,