K. L. Gupta & Ors Vs. The Bombay
Municipal Corporation & Ors [1967] INSC 182 (21 August 1967)
21/08/1967 MITTER, G.K.
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 Bombay 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 development 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 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 redesignation 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 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.
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 petitioner (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 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 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
Maharashtra, 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 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 there from 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 there from 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 carefully
considered by the Development Committee which 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 Committee 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 advancedin 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 focused 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 "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 prepared 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 describedas 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 publication 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 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 submitted 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 development plan relating to the whole of the area. Under subs. 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:
"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 reasonable
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 specified
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 development 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 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 subs. (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
completely 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.
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 consultations 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
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
recommendations 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 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 suggestions 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
development 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 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 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
petitioner'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 authorities are able to make other
provisions for affording the slum dweller tenants 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 fulfill 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 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 building 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.
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 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 declaration
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 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 the petitioners that Art. 14 is violated, is also not acceptable."
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 uncontrolled 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 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 there under
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 communicated 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
Constitution, the petitions will all be dismissed. The petitioners will pay one
set of costs.
R.K.P.S. Petitions dismissed.
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