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The Municipal Corporation of Greater Bombay Vs. the Advance Builders (India) Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number O.C.J. Appeal No. 2 of 1967 and Miscellaneous Petition No. 474 of 1965
Judge
Reported in(1971)73BOMLR657
AppellantThe Municipal Corporation of Greater Bombay
RespondentThe Advance Builders (India) Pvt. Ltd.
Excerpt:
bombay town planning act (bom. xxvii of 1955), sections 54, 55, 51(3) - bombay town planning rules, 1955, rules 27, 28, 17(vi)--whether power conferred on local authority under sections 54 & 55 discretionary or mandatory.;the power conferred on a local authority under sections 54 and 55 of the bombay town planing act, 1954, to evict summarily persons in illegal occupation of land or to remove unauthorised construction or temporary structure standing on final plots in a scheme made under the act, is not a mere discretionary power but is a mandatory duty cast on the local authority -which it is statutorily bound to perform within the prescribed time and for the breach of which a writ of mandamus could be issued by the court.;julius v. lord bishop of oxford (1880) 5 a.c. 214, alcock.....s.p. kotval, c.j.1. this is an appeal against the judgment and decree of mr. justice thakkar dated november 23, 1966 whereby certain writs were granted against the municipal corporation of greater bombay and the municipal commissioner for greater bombay, the appellants before us. the writs were granted at the instance of the three respondents messrs. advance builders (india) pvt. ltd., phalajitsingh tulsidas rajpal and dahiben umedbhai patel who were the petitioners before the learned judge. in the petition they had also joined two other persons as respondents to the petition, shrichand jairamdas and miss minoo v, patel who had a common interest with the petitioners.2. the circumstances under which these writs came to be granted are briefly as follows:-on june 15, 1948 the then municipal.....
Judgment:

S.P. Kotval, C.J.

1. This is an appeal against the judgment and decree of Mr. Justice Thakkar dated November 23, 1966 whereby certain writs were granted against the Municipal Corporation of Greater Bombay and the Municipal Commissioner for Greater Bombay, the appellants before us. The writs were granted at the instance of the three respondents Messrs. Advance Builders (India) Pvt. Ltd., Phalajitsingh Tulsidas Rajpal and Dahiben Umedbhai Patel who were the petitioners before the learned Judge. In the petition they had also joined two other persons as respondents to the petition, Shrichand Jairamdas and Miss Minoo V, Patel who had a common interest with the petitioners.

2. The circumstances under which these writs came to be granted are briefly as follows:-On June 15, 1948 the then Municipal Committee of Bandra declared its intention to frame a scheme under Section 9(1) of the then operative Town Planning Act of 1'915. On May 7, 1951 the then Government of Bombay sanctioned the making- of that scheme. Therefore a draft scheme was duly prepared and published by the Municipality on April 30, 1953. In the meanwhile the Town Planning Act of 1915 was repealed and substituted by the Bombay Town Planning Act of 1955 on April 1, 1957. Sanction was obtained from the Government to the draft scheme 011 May 6, 1954 and for the purposes of the implementation of the Scheme one G.J. Desai was appointed arbitrator by a resolution of the Government dated August 17, 1954 (Resolution No. TPD-1054). Desai took action as prescribed by Section 30 of that Act (Act I of 1915) and ultimately formulated a final scheme which was published on December 30, 1956 and on the same day forwarded his proposals under Section 32 of that Act I of 1915 to the President of the Tribunal appointed under the Act.

3. Before the President could take action, the Bombay Town Planning Act 1915 was, as we have said, repealed and replaced by the Bombay Town Planning Act XXVII of 1955. Though it is an Act of 1955 it was brought into force in this area on April, 1957. However, by virtue of 9 of the new Act the draft scheme published under the old Act continued in operation and therefore on April 12, 1958 the Board of Appeal under the new Act gave its final decision. This final decision was communicated to the Government as required by the new Act and the final scheme was sanctioned on August 21, 1958. The sanction brought the scheme into force from January 1, 1959.

4. The scheme is known as the Bombay Town Planning Scheme Santacruz No. VI. It comprises an area of a little over 150 acres of land on two sides of the Ghodbunder Road. The Ghodbunder Road runs north-south dividing the area covered by the Scheme into two unequal parts, the eastern part which has a little over one-third of the total area of the scheme and western part which comprises of a little less than two-thirds of the total area of the scheme. For the purposes of the petition and the present appeal we are only concerned with the eastern portion.

5. It was the case of the petitioners that originally a portion of the land comprised in the eastern part of this scheme belonged to a trust, the N. J. Wadia Trust. In Petition No. T/31 of 1'948 proceedings were taken in relation to that trust in the High Court and a Receiver came to be appointed on February 8, 1948. The petitioners alleged that the Receiver transferred an area out of the trust properties to them and to one Gardi on July 31, 1962. The petitioners claim that the Receiver conveyed to them in all 41 final plots in that final scheme which had by then been promulgated. These 41 plots are final plots Nos. 106 to 116 and 118 to 147. All these plots taken together admeasure 69625 sq. yds. comprised in the eastern portion of the Santacruz Scheme No. VI.

6. Thereafter Gardi sold his share of the land purchased from the N. J. Wadia Trust to respondents Nos. 3 and 4 in the petition, Thus between the petitioners and respondents Nos. 3 and 4 in the petition, they owned the whole of the 4,1 plots. The petitioners alleged that respondents Nos. 3 and 4 declined to join them in the petition and therefore they were added as party respondents.

7. The petitioners have also alleged that the Corporation of Bombay took over the entire Scheme when the Corporation was given jurisdiction over the area comprised in Greater Bombay and the Baudra Municipality ceased to exist. Thus their cause of action is now against the Corporation of Bombay only.

8. It was the case of the petitioners in the petition that though the final scheme was published and its terms prescribed various acts which had to be performed by the Corporation, the Corporation has remained inactive and has not performed its duties both under the Town Planning Act as well as under the Scheme which had been promulgated and which under the law became a part of the Act itself. Principally the petitioners complained about the inaction of the Corporation in regard to two matters. (1) Firstly that though the scheme had been promulgated and the final plots declared since several years and certainly since the date of the coming into force of the scheme on January 1, 1959 there were numerous unauthorised huts, sheds, stables and temporary structures existing on the plots and that the respondents were under a duty to remove the said huts, sheds, stables and other temporary structures within one year from January 1, 1959, but that the respondents had failed and neglected to do so till the date of the petition. (2) Secondly, the petitioners alleged that the respondents had also failed to construct the necessary roads as prescribed in the scheme and to provide the drainage by construction of storm drains.

9. They further alleged that the petitioners drew the attention of the respondents to their duty and called upon them to perform it by their attorneys' letter dated May ]5, 1964. Particularly they called upon them to take steps to remove the unauthorised and temporary structures on the petitioner's plots. They followed it up by a letter written on January 11, 1965. To this the Municipal Commissioner, respondent No. 2, replied saying that necessary directions had been given to the Department concerned to take action under the provisions of the Town Planning Act for the removal of the unauthorised sheds. The petitioners had also asked for an interview, but the Commissioner declined to grant an interview because he said that he was taking action. This correspondence appears at exh. B.

10. For these reasons the petitioners claimed in the petition that a writ of mandamus or a writ in the nature of mandamus be issued against the two respondents ordering them to perform their statutory duty of constructing the roads and drains and removing the huts, sheds, stables and other temporary structures unauthorisedly erected upon the land.

11. The Corporation in its reply has taken different stands regarding the different heads of inaction charged against them. As regards the construction of roads they have pointed out that the sheds and structures were already there on the original plots and they had not been removed and demolished and therefore they were not in a position to undertake construction of the roads. In an affidavit sworn by their Assistant Engineer dated October 14, 1966 he has stated:

I submit that under the provisions of the said Scheme there is no obligation cast on the 1 st respondents to remove all hutments or sheds in the area of the said Scheme irrespective of the fact that the said sheds or structures were already in existence on the original plots. I say that the work of construction of the roads as mentioned in the said Scheme has started and has been completed wherever the land falling in road is free from structures. The Municipal authorities have not been able to remove the structures situate on the road, as it is impossible to give alternative accommodation to all the persons dishoused by reason of the demolition of the said structures.

He also added that according to the scheme final plot No. 60 admeasuring 27704 sq. yds. was reserved for housing persons of the low income group and that a number of tenements were being constructed on the plot but they would be hardly sufficient for all the persons who would be dishoused in consequence of their structures being removed from the area over which the roads are to be constructed.

12. Lastly, the affidavit stated 'I submit that it is the petitioners' responsibility to remove the structures falling on the said original plots.' It is this stand on the part of the Corporation which has given rise to the principal point arising in the petition and in the present appeal namely whose is the duty to remove the unauthorised and temporary structures standing on the final plots. According to the petitioners it is the duty of the Corporation to remove all unauthorised occupants and their structures. According to the Corporation it is the duty of the petitioners since they are the owners of the final plots. The Corporation has also taken a plea that it is impossible to construct the roads within the period prescribed under the scheme and that the period prescribed did not cast a mandatory duty upon the Corporation to construct the roads within that time. They have contended that it was an obligation of a directory nature only and that therefore the Corporation was not bound by the time set by the terms of the scheme and that they were doing their best in the circumstances.

13. Similarly, in the case of construction of storm water drains they have stated that there is no time limit for their construction and denied that the respondents failed to carry out the alleged mandatory statutory duty or obligation imposed upon them. The petitioners had referred to Sections 54 and 55 of the Town Planning Act as indicating the duty of the Corporation in this behalf but the Corporation in para. 15 denied the correctness of the construction of Sections 54 and 55 of the Town Planning Act put by the petitioners.

14. The learned Judge has held that it was a mandatory duty of the Corporation not merely to remove the unauthorised and temporary structures but also to construct the roads and provide the drains regarding which the petitioners complained. He has held that the time limit was not merely directory but was mandatory. He has held that Sections 54 and 55 lay down that duty and even having regard to the provisions of the scheme Clause1 thereof showed that it was the duty of the Corporation to remove the unauthorised and temporary structures. He has observed that the Corporation has taken its duties in a light-hearted manner. It is against this decision that the present appeal has been preferred on behalf of the Corporation and the Commissioner.

15. The first question that arises for decision in this appeal is what is the position so far as the statute itself is concerned irrespective of what has been stated in the Scheme. It will be noticed that the preamble of the Town Planning Act of 1954 itself states that the Act has been passed 'in order to ensure that town planning schemes are made in proper manner and their execution is made effective.' The undertaking of Town Planning Schemes is entirely the responsibility of a local authority which by the definition would indicate the respondent Corporation. The making of a Town Planning- Scheme is prescribed by Section 18 and Sub-section (2) lays down what may be the contents of a Town Planning Scheme. Sub-sections (2)(b) and (d) prescribe that such Town Planning scheme may make provisions for any of the following matters:

(b) the filling up or reclamation of lowlying, swamp or unhealthy areas or levelling up of land ;

(d) the construction, alteration and removal of buildings, bridges and other structures.

In Clause (g) powers ancillary to the achievement of the other purposes are conferred. One of the powers in Clause (j) of Section 18(2) is 'the dis-continuance of objectionable users of land in any area in reasonable periods'. Section 21(1)(iii) shows that a Town Planning Scheme may be made in accordance with the provisions of the Act in respect of any land which is already built upon. Therefore, the provisions of the statute itself contemplate that a scheme may comprise land over which structures have been constructed and give ample powers to the Local Authority which under the Act has to make the Scheme to ensure discontinuance of objectionable users of land in the area covered by the scheme. Once a Local Authority desires to make a scheme it has to declare its intention under Section 22 and then proceed to frame a draft scheme. Here again what should be the contents of the draft scheme are prescribed by Section 25 and one of the particulars mentioned in Clause (b) of Section 18(2) is 'the filling up or reclamation of low lying, swamp or unhealthy areas or levelling up of land'. After the draft scheme is formulated it has to be published and submitted to the State Government for its sanction and if the State Government sanctions the draft scheme it issues a notification under Section 23. The effect of the sanction granted by the State Government is of some importance, because it bars all private owners from doing certain things upon the land regarding which the notification is issued. On and after the date on which the Local Authority's declaration of intention to make the scheme under Section 22 is published or a notification is issued by the State Government under Section 24, no private party can within the area included in the scheme erect or proceed to erect any building or work or make any alteration (the provisions are extremely extensive and detailed) in the land comprised in the scheme and owned by the private party. Sub-section (2) of Section 29 deprives a party also of any claim which he may make in respect of damages, loss or injury resulting from any action taken by the local authority under the provisions of Section 29. We emphasise these provisions here because the contention on behalf of the Corporation seems to suggest that the rights of the owners of the land remain unaffected by the promulgation of their intention to make a draft scheme or by the sanction of the draft scheme by the State Government. On the other hand it is clear that the rights of private owners to their lands within the scheme becomes severely restricted once the intention of the local authority is declared or sanction by the State Government is given.

16. Next the Act prescribes the appointment of a Town Planning Officer under Section 31 and prescribes what are his duties under Section 32. He has got large quasi-judicial powers. By Section 33 every decision of his becomes final and conclusive and binding on all persons except decisions under Clauses (v}, (vi), (viii), (ix)(x) and (xiii) of Section 32(1). After the Town Planning Officer has made his decisions there may be filed an appeal to the Court of appeal but subject to the decision of the Board of Appeal, Section 40 prescribes that all decisions arising out of Clauses (v), (vi), (viii), (ix), (x) and (arm) of Sub-section (1) of Section 32 shall become final and conclusive. So also is the decision in an appeal of the Board of Appeal. In other words, the decision taken further restricts the rights of the owner of plots and he has no power to dispute the decision of the Town Planning Officer except by way of appeal and the decision of the Board of Appeal then becomes final and conclusive. That is the effect of Section 34 read with Sections 40 and 43 of the Act. Section 43(2) prescribes that the Board of Appeal should then send a copy of its decision to the Town Planning Officer who shall then make variations in the scheme in accordance with such decision of the Board of Appeal and forward the final scheme together with a copy of the decision under Section 32 to the State Government for sanction of the final Scheme. Section 45 prescribes that

If a draft scheme Or if any of the sections of a draft scheme contains any of the following works :--...

(ii) roads, open spaces, gardens and recreation grounds,

(iii) drainage, inclusive of sewage, surface drainage and,..sewage disposal, the Town Planning Officer shall, on the application of the local authority, prepare in regard to such scheme or section in the prescribed manner a preliminary scheme in accordance with the provisions of Section 32:

This shows clearly that the duty to provide roads and drainage is east upon the local authority which is enjoined to ask the Town Planning Officer to frame a preliminary scheme in that respect. Once the final scheme is sent to the State Government they may approve of it or modify it but if they approve of it the effect laid down by the Act is again of importance. Section 53 prescribes that

On the day en which the final scheme comes into force,-

(a) all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encumbrances;

(b) all rights in the original plots which have been re-constituted shall determine and the re-constituted plots shall become subject to the rights settled by the Town Planning Officer.

Clause (a) would apply in the present case to the area vested in the Corporation for the purposes of roads and Clauses (b) to the plots held by the petitioners. As soon as the final scheme came into force, therefore, the effect was that all the rights of the plot holders in plots which had been reconstituted were determined and the re-constituted plots which they began to hold become subject to the rights settled by the Town Planning Officer. In other words, they would be governed by the provisions of the scheme.

Sections 54 and 55 are of importance with reference to the point as to whose duty it is to evict unauthorised occupants of the final plots. Section 54 says:

On and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the local authority.

Both the parties referred to and relied upon Section 54 for the simple reason that the whole section is couched in the passive voice. Counsel on behalf of the Corporation urged that this is the provision which shows that the plot holder may himself take steps by way of a suit if need be to evict the unauthorised occupants. Section 54 in terms refers to the local authority and it says that any person not entitled to occupy any land '... .may.. .be summarily evicted by the local authority.' Relying upon the word 'may' Mr. Joshi also urged that this is only a power and does not confer a duty.

17. Section 54 has to be read along with Section 55 which deals with the power to enforce a scheme. Section 55 provides as follows:

55. (1) On and after the day on which the final scheme comes into force the local authority may after giving the prescribed notice and in accordance with the provisions of the scheme-

(a) remove, pull down, or alter any building or other work in the area included in the scheme which is such as to contravene the scheme or in the erection or carrying out of which any provision of the scheme has not been complied with;

(b) execute any work which it is the duty of any person to execute under the scheme in any case where it appears to the local authority that delay in the execution of the work would prejudice the efficient operation of the scheme.

(2) Any expenses incurred by the local authority under this section may be recovered from the persons in default or from the owner of the plot in the manner provided for the recovery of sums due to the local authority under the provisions of this Act.

(3) If any question arises as to whether any building or work contravenes a town planning scheme, or whether any provision of a town planning scheme is not complied with in the erection or carrying out of any such building or work, it shall be referred to the State Government or any officer authorized by the State Government in this behalf and the decision of the State Government or of the officer, as the case may be, shall be final and conclusive and binding on all persons.

18. Sub-section (1)(a) of Section 55 undoubtedly gives the local authority power to remove, pull down or alter any building in the area included in the scheme 'which is such as to contravene the scheme or in the erection or carrying out of which any provision of the scheme has not been complied with'. Any unauthorised construction or temporary structure 'which is not authorised would undoubtedly be a building or other work which contravenes the scheme and there can be no doubt or dispute in the present case that the unauthorised structures, huts and constructions standing on the plots about which the petitioners complain would be such as to contravene the scheme. The question is when this power has been stated is it the duty of the Corporation to exercise it or is it merely a power which it may exercise at its discretion but which it is not bound to exercise?

19. It seems to us that it would be contrary to the whole scheme of the Act and its object and purpose if we were to hold that the powers conferred by Sections 54 and 55 are merely directory powers which the Corporation possesses but which it is not bound to exercise. The whole scheme of the Act shows that in the process of framing a town development scheme and putting it into effect the local authority has at every stage not merely the power to act but also the duty to act in furtherance of that scheme.

20. The Town Planning Act was passed for a public purpose namely the development of the town by the removal of unhealthy and insanitary areas, reclamation of low lying, swamp or unhealthy areas, levelling' up of land and similar other objects. In this very case the scheme itself also indicates that the eastern section, with which we are concerned, was an insanitary slum. In the brief history of the scheme given at the commencement of the scheme it is stated that out of the 54 acres in the eastern portion of the scheme about 25 acres of Khoti land towards the south were developed indiscriminately into an insanitary slum for residences and stables housed mostly in temporary structures; 9 acres of it were developed for buildings partially but on no planned basis and the remaining area of about 20 acres was without proper means of access and communications. By Section 51(5) it is provided that on and after the date fixed in the notification of the final scheme to be issued by the Government, the Town Planning Scheme takes effect 'as if it were enacted in this Act'. In other words, by a statutory fiction the scheme becomes a part of the Act. We have already referred to the main provisions and have pointed out that the Act gives plenary and wide powers to the local authority but there is not a single power conferred by the State upon the private owner of the land or the holder of the final plot. Is it to be supposed that the owner is relegated to the normal remedy of a suit which is in any event a remedy which takes time and if an appeal or a second appeal were to be preferred certainly it would take more than 7 or 8 years at the least. Is it to be supposed that in such circumstances the law intended to leave the private plot holder to his own remedy? If that were to happen we do not think that any development scheme could ever be made effective. To take the example of this very scheme if a single squatter is upon each of the plots and the individual owner of the plot were to be left to his remedy to file a suit and evict him, the entire area will remain a slum as it is for another 8 or 10 years and that would defeat the very purpose and object of the Act. That is why we think that the statute has said that as soon as the scheme is notified it becomes a part of the statute and that is why we also feel that the only correct interpretation of the provisions of Sections 54 and 55 would be to hold that when the power is conferred upon the local authority to evict summarily persons in illegal occupation and to enforce the scheme generally, that is not a mere power to be exercised in the discretion of the authority, but becomes a duty on the part of the local authority.

21. So far we have merely stated the general principles based upon the purpose and object of the scheme under the Act but even upon the accepted rules of construction of the statutes the view which we are inclined to take would be the only view possible. The principle was first adverted to in the celebrated case of Julius v. Lord Bishop of Oxford (1880) 5 A.C. 214, where Lord Cairns observed (p. 222) :.there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.

The Privy Council accepted this principle in Alcock Ashdown & Co. v. Chief Revenue Authority, Bombay : (1923)25BOMLR920 . This Court itself applied the principle in the construction of the word 'may' in Section 12(5)(a) of the Bombay Rents, Hotel and Lodging- House Rates Control Act and the Division Bench observed in Kurban Hussen v. Ratikant (1956) 59 Bom. L. R. 158 :. If statutes authorise any specified persons to do acts for the benefit of others, the authority conferred is coupled with an obligation to discharge a duty by the statutes themselves; and, in such a case, though the word used by the Legislature may be 'may', the intention is to impose an obligation upon the authority to discharge his duty, with the result that the word 'may' in the context means 'must' or 'shall'. Whether the authorised person is given a discretion or is under a compulsion or obligation to do a particular act would inevitably depend upon the context in which the word 'may' has been used, the scheme of the statute wherein the section using the word 'may' occurs, and such other relevant considerations.

The Supreme Court of India applied the principle in the case of a statute (C.P. and Berar Revocation of Land Revenue Exemption Act) where the word 'may' was used in conjunction with the duty of the Government to make enquiry before passing orders under Section 5(5) of the Act, and in Govindrao v. State of M.P. : [1965]1SCR678 , the Supreme Court held (p. 1226) :. This is an instance where, on the existence of the condition precedent, the grant of money or pension becomes obligatory on the Government notwithstanding that in S. 5 (2) the Government has been given the power to pass such orders as it deems fit and in Sub-section (3) the word 'may' is used. The word 'may' is often read as 'shall' or 'must' when there is something in the nature of the tiling to be done which makes it the duty of the person on whom the power is conferred to exercise the power.

The Supreme Court referred with approval to the principle stated in Maxwell on Interpretation of Statutes:

Statutes which authorise persons to do acts for the benefit of others, or as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they 'may', or 'shall, if they think fit', or, 'shall have power,' or that 'it shall be lawful' for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have to say the least a compulsory force, and so would seem to be modified by judicial exposition.

The same view is expressed in the 11th edn. of Maxwell at page 231. We have already shown that this statute was passed purely in the public interest and that -the rights of private citizens have been considerably modified and curtailed in the interests of the general development of an area or in the interests of removal of slums and insanitary areas. It is, therefore, precisely the sort of statute where though the power is conferred upon the statutory body by the use of the word 'may' that power must be construed as a statutory duty.

22. There is also another indication in Section 55 itself which points to this conclusion. In Sub-section (2) of Section 55 provision is made for the expenses incurred by the local authority in certain cases when enforcing the scheme and Sub-section (2) provides that

Any expenses incurred by the local authority under this section may be recovered from the persons in default or from the owner of the plot in the manner provided for the recovery of sums due to the local authority under the provisions of this Act.

We do not suppose that if the authority conferred by Section 55 is to be exercised purely at the sweet will and discretion of the local authority, the Legislature would have provided for the recovery of expenses from the owner of the plot. It is not to be supposed that the owner of the plot would be made to pay for doing an act which he never asked for and which the authority was not bound to perform in his favour. This itself also indicates that the power conferred under Sub-section (1) although preceded by the word 'may' is really a duty prescribed and because a statutory body is enjoined to perform that duty therefore, it has the power to recover expenses from the owner of the plot.

23. Another consideration is that in defining' the 'authority' both under Section 54 and Section 55 of the Act the Legislature has enjoined that the local authority may act in accordance with the prescribed procedure, in Section 55 after giving the prescribed notice. These prescriptions of procedure and the manner of giving notice would be unnecessary if: it were a mere matter of discretion with the local authority. Normally it is only where a duty is being prescribed that provision is made in a statute for prescribing the procedure by which the duty shall be performed and a glance at the rules framed under the provisions of Section 87(2)(m) and (n) also indicates the same thing. Clause (m) gives power to the State Government to make rules for carrying out the purposes of the Act and in particular for ' (m) the procedure to be followed by the local authority in summarily evicting a person under section. 54' and ' (n) the notice to be given by the local authority before it takes action under Section 55' and the State Government has by notification published the Bombay Town Planning Rules, 1955 under its powers under Section 87 and the rules 27 and 28 prescribe the procedure and the requirements of the notice. Rule 27 says 'for eviction under Section 54, the local authority shall follow the following' procedure'. Rule 28 similarly says '... a local authority shall serve a. notice on the owner or occupier of the building etc.' There will be no meaning in giving this power to the State Government for making this rule or the State Government framing the rule, if the powers under the parent Act under Sections 54 and 55 were as is claimed discretionary powers, not mandatory but only directory vested in the local authority, for if a local authority is not bound to exercise a power there is no meaning in saying that it shall follow a certain procedure. It may not exercise this power at all. Usually where procedure is prescribed by the rules, it is only where a statutory duty is laid upon a local authority.

24. [His Lordship after examining the provisions of the scheme, proceeded].

25. We, therefore, hold that having regard to the provisions of the Act as well as the provisions of the scheme which are part of the Act by virtue of Section 51(3) there is a mandatory duty cast upon the Corporation to remove the unauthorised huts, sheds, stables and temporary structures which exist upon the final plots belonging to the petitioners. The authority is not merely a discretionary authority conferred upon the Corporation but is a duty which they are statutorily bound to perform and for the breach of which the petitioners would be entitled to a writ from this Court.

26. [His Lordship after considering points not material to this report, proceeded].

27. Next we turn to the contention raised on behalf of the appellants that the respondents who have filed the petition had no locus standi for the reason that they had no interest in the enforcement of the specific legal duty which it is claimed the Corporation should perform. It was urged that this was an application for a writ. The writ claimed was of mandamus asking for enforcement by performance of the legal duty vested in the Corporation and that in order that they should be entitled to claim that the Corporation should perform such a duty there must be a specific legal right vested in the petitioners to have that duty specifically performed in their favour. The petitioners stated in para. 2 of the petition that the petitioners as well as respondents Nos. 3 and 4 were interested in the said plots and in para. 6 that their personal and proprietory rights were gravely affected and prejudiced by the failure and neglect of respondents Nos. 1 and 2 in carrying out their duties. There was a general denial in para. 18 of the affidavit in reply dated October 14, 1966 that each and every allegation and contention in para, 6 is denied, but it was not contended that for want of such an interest the petitioners were disentitled to claim the enforcement of the specific legal duty against the Corporation. We do not see how the petitioners are not interested in having the specific duties prescribed being performed by the Corporation. From the time that the final plots were made and the scheme received the sanction of the Government, the scheme became a part of the Act and the petitioners were not entitled to deal with the final plots except in accordance with the provisions of the scheme. Moreover, they became liable and must have paid the betterment charges and the taxes due to the Corporation while they have been unable to use these plots for the reason that, the Corporation does not remove the squatters on them. In our opinion, the petitioners have a. sufficient enough interest to have a right to ask for the writs they have asked for.

28. So far as the roads and drains are concerned, it was conceded that the duty to provide them is of the respondent Corporation but what was contended was that the provision in the Scheme is directory and that they were not bound to provide them within the time prescribed. In our opinion, that contention cannot be Tipheld. We have already shown why we consider that the duty to provide the roads and drains was not merely directory but also mandatory and the same reasoning would apply here.

29. So far we have dealt with the questions arising upon the assumption that the duties prescribed by Sections 54 and 55 are mandatory, but even if they were directory it is now settled law that a directory provision must be substantially complied with. In Punjab Co-operative Bank, Ltd. v. Commissioner of Income-tax, Lahore (1940) 43 Bom. L.R. 872 : A.I.R.[1940] P.C. 281 it was held that it is a well-settled general rule that 'an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' The same principle was accepted by the Supreme Court in Drigraj Kuer v. A. K. Narain Singh : [1960]2SCR431 , where the Supreme Court dealing with Section 56 of the U.P. Court of Wards Act observed that .a provision giving a discretionary power leaves the donee of the power free to use or not to use it at his discretion. A directory provision however gives no discretionary power to do or not to do the thing directed. A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity.

In the instant case the learned Judge has found and, in our opinion, rightly that although the scheme came into force from January 1, 1959 the Corporation started its work only in 1964. This was on the statement of Mr. Banaji the counsel for the Corporation and the learned Judge has noted that '... Mr. Banajee under instructions from his clients (which were obtained by him) said that the work of construction of roads was taken on hand by the Municipal authorities for the first time in 1964'. Therefore it is clear that even though the provisions of the regulations and the scheme or of the Act be merely directory, still substantially there was no compliance on the part of the Corporation. In this connection Rule 17 Clause (vi) of the Bombay Town Planning Rules 1955 was referred to but Clause (vi) of Rule 17 says:

17. Contents of draft scheme : A draft scheme shall contain the following particulars in addition to the particulars specified in Clauses (a) to (g) of Section 25, namely :-...(vi) A copy of the estimates of all works contemplated in the scheme and a statement of the approximate dates by which the respective works are expected to be completed, such approximate dates being correct to within six months and binding on the local authority.

This Rule itself shows that the dates mentioned in the draft scheme are binding upon the local authority. The only relaxation that is contemplated is that these dates, though approximate dates, are correct to within 'six months and binding on the local authority'. Therefore, even allowing for a further period of six months from the time limited by the scheme, there has been no substantial compliance with the provisions of the scheme.

30. Then we turn to another general contention advanced by Mr. Joshi. He urged that in many of these causes where the petitioners alleged that squatters have taken possession, these parties have filed suits and if they had filed suits and obtained injunctions it will be impossible for the Corporation to fulfil their duty even assuming that it is a mandatory duty and that, therefore, a writ should not issue. He urged that a direction or a writ to do a thing which is impossible ought not to be issued. In the first place, there is absolutely no material before us to show that any party has filed a suit and obtained an injunction. Much less is there any indication that the Corporation has even attempted to oust any of these squatters or the latter have obtained any injunction and the Corporation has failed to get the injunction dissolved. There must be a genuine effort made on the part of the Corporation and not just a mere farce put up to show their efforts. We are in agreement with the learned Judge that the Corporation has taken their duty in a somewhat light hearted manner. Moreover, we may say that the writ itself contains a direction that in the event of respondents Nos. 1 and 2 not being able to expedite the hearing and final disposal of suits filed in the City Civil Court at Bombay, they be at liberty to apply for necessary directions after giving prior notice to the petitioners. In view of this direction in the order making the Rule Nisi absolute, there remains no substance in the contention advanced. If the Corporation has genuinely and actively contested the suit and failed to get the injunction issued against them dissolved obviously no Court is going to insist that nonetheless they perform their duty but the performance of their duty must be shown to have been genuine.

31. [The rest of the judgment is not material to this report.]


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