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Murtujakhan Joravarkhan Babi Vs. the Municipal Corporation of the City of Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 1829 of 1971
Judge
Reported inAIR1975Guj182; (1975)0GLR806
ActsConstitution of India - Articles 14, 19(1), 141, 226; Bombay Town Planning Act, 1955 - Sections 53 and 54
AppellantMurtujakhan Joravarkhan Babi
RespondentThe Municipal Corporation of the City of Ahmedabad and ors.
Appellant Advocate K.S. Nanavati, Adv. for; I.M. Nanavati, Adv.
Respondent Advocate V.B. Patel, Adv. and; C.V. Jani, Asstt. Govt. Pleader of;
Cases ReferredTrilokchand Motichand v. H. B. Munshi
Excerpt:
property - eviction - sections 53 and 54 of bombay town planning act, 1955 - appellant owner of plot of land - plot of land allotted to postal authorities - after 15 years plot given to postal authorities - compensation awarded to appellants - appellants challenged act of respondents in allotting plot of land under scheme on ground that scheme null and void and ultra vires - once scheme was framed titles stands transferred under section 53 itself - appellant ceased to occupy plot upon reconstitution under section 53 (b) - held, appellant liable to be evicted under section 54. - - the constitutional validity of the old act as well as of the new act as a whole was also challenged. makvana, air 1967 sc 1373, the challenge to the act as a whole in the context of legislative competence as.....p.d. desai, j.1. the petitioner is the owner of final plot no. 51 of town planning scheme no. iv (varied) of maninagar (manipur) at ahmedabad. the said plot admeasures about 2662 sq, yds. in the year 1924 the notified area committee of kankaria was the local authority for the maninagar area within the meaning of section 9 of the bombay town planning act, 1915 (hereinafter referred to as the old act). the notified area committee declared its intention to frame a town planning scheme in the year 1924 and a draft planning scheme was accordingly prepared in due course in the said draft scheme the land of the petitioner was reserved for post office and it was directed that the land shall remain vacant in possession of the owner for fifteen years and that no super structure shall be erected.....
Judgment:

P.D. Desai, J.

1. The petitioner is the owner of final plot No. 51 of Town Planning Scheme No. IV (Varied) of Maninagar (Manipur) at Ahmedabad. The said plot admeasures about 2662 sq, yds. In the year 1924 the Notified Area Committee of Kankaria was the local authority for the Maninagar area within the meaning of Section 9 of the Bombay Town Planning Act, 1915 (hereinafter referred to as the old Act). The Notified Area Committee declared its intention to frame a Town Planning Scheme in the year 1924 and a draft planning scheme was accordingly Prepared in due course in the said draft scheme the land of the petitioner was reserved for Post Office and it was directed that the land shall remain vacant in Possession of the owner for fifteen years and that no super structure shall be erected thereon during the said period. The Final Town Planning Scheme No. IV (Manipur) was thereafter duly prepared and by a notification dated April 27, 1931 sanction was accorded to the same with effect from July 1, 1931. This scheme subsequently came to be known as the 'Principal Scheme' and will be referred as such in the course of this judgment. Under the Principal Scheme also the plot in question was reserved for fifteen years for post office and a direction was given that the land shall remain vacant in possession of the owner and no superstructure shall be erected thereon during the period of reservation.

2. On July 13, 1,939, a Government Notification was issued in exercise of the power conferred by Section 45-A of the old Act under which the properties and rights of the Notified Area Committee in the Principal Scheme were vested in the then Municipal Borough of Ahmedabad with effect from February 1, 1939. On November 15, 19144 the Committee of Management of the Municipal Borough of Ahmedabad passed a resolution declaring its intention to vary the Principal Sehemeand a notification to that effect was duly published in the Government Gazette on November 30, 1944 (Annexure 'A').

Clauses 4 and 5 of 'the said notification indicate that it was inter alia proposed to acquire final plot No. 51 which was originally reserved for a public purpose and to allot additional plots for public purposes where no such provision was made in the Principal Scheme. By a notification dated December 21, 1945 published in the Government Gazette dated December 27, 1945, the Government accorded sanction to the variation of the Principal Scheme under sub-section (6) of Section 9 of the old Act- (Annexure 'B'). On December 16, 1946 the draft varied scheme was prepared and it was published in the Government Gazette dated December 20, 1946. In the draft varied scheme, provision was made for that allotment of final plot No. 51 to the postal authorities. The objections were invited and duly considered and the draft varied scheme was thereafter submitted to the Government for sanction under Section 14 of the old Act. The Government by its notification dated July 9, 1948 (Annexure 'C') accorded its sanction to the said varied scheme under sub-section (2) of Section 14 of the old Act.

3. On May 21, 1953 the petitioner made an application for putting up a structure on the land in question. The said application was, however, rejected by the Town Development Officer, Ahmedabad Municipal Corporation by his letter dated May 24, 1953 on the ground inter alia that the plot in question having been reserved for post office sanction for construction thereon could not be granted (Annexure 'D'),

4. On April 1, 1,967 the Bombay Town Planning Act, 19,54 (hereinafter referred to as the Act) came into force. Section 90, of the Act repealed the old Act but saved the steps taken under the old Act with regard to the bringing into force of a Town Planning Scheme.

5. On March 3, 1966 the petitioner filed Special Civil Application No. 425 of 1966 in this Court challenging the Town Planning Schemes in question and the. reservation of his plot under the said scheme for the purpose of post office. The constitutional validity of the old Act as well as of the new Act as a whole was also challenged. On April 18, 1966 rule was issued on the petition. On Julv 11, 1969 the said petition was withdrawn on the, ground that the only point raised in the petition related to the validity of the provisions of Bombay Town Planning Act, 1954 and that since the said point was covered by two decisions of the Supreme Court, the petition did not survive.

6. In the meantime, on April 28, 1966 the Town Planning Officer drew up the final Town Planning Scheme (varied) under Section 32 (1) of the new Act. In the said scheme the petitioner's land was allotted to the postal authorities for the purpose of setting up a -post office. The petitioner was awarded compensation in the sum of Rs. 5,990 in respect of the plot in question. The Town Planning Officer forwarded the scheme to the Board of Appeal in due course. The Board of Appeal met on several days and decided all the, matters arising under the various relevant clauses of sub-section (1) of Section 32 of the Act and communicated its decision to the Town Planning Officer on April 16, 1969. The petitioner's appeal against the compensation awarded to him was dismissed by the Board of Appeal. On August 7, 1969 the final varied scheme was zubmitted to the Government for according its sanction. On November 4, 1969 sanction was accorded to the final varied scheme and the said scheme came into force with effect from January 1,1970.

7. On December 17,1970, the Estate and City Improvement Officer, Ahmedabad Municipal Corporation, addressed a letter to the petitioner stating that plot No. 51 had been reconstituted and the said plot had been allotted to Posts and Telegraphs. Department under the final varied scheme. The letter gave intimation to the petitioner that possession of the said plot would be given to the Posts and Telegraphs Department. A copy of this letter is at Annexure 'F'.

8. On June 18, 1971 the petitioner filed Civil Suit No. 1329 of 1971 in the City Civil Court at Ahmedabad against the Municipal Corporation of Ahmedabad, Union of India and the Town Planning Officer inter alia praying for a declaration that the defendants had no right, title or interest in final plot No. 51 and that they were not entitled to recover possession of the said plot in pursuance of the varied Town Planning Scheme since the said scheme was null, void, ultra vires, ineffective and inoperative and for a permanent injunction restraining the defendants from disturbing or interfering with the plaintiff's possession of the said plot. An interim injunction was granted in the said suit.

9. While the suit was pending in the City Civil Court, on October 13, 1971 the petitioner filed the present petition challenging the legality of (i) the reservation of the land in question as made in the principal town planning scheme No. 4; (ii) the allotment of the land made under the final town planning scheme (varied) in favour of the postal authorities; (iii) the order of the Estate and City Improvement Officer intimating that possession of final plot No. 51 was to be handed over to the postal authorities and (iv) the constitutional validity of Section 54 of the Act on the ground that it violated the fundamental rights guaranteed to the petitioner under Articles 14 and 19 of the Constitution. Rule was issued on the petition on October 14, 1971 and interim relief restraining the respondents from interfering with the petitioner's possession of final plot No. 51 was granted.

10. After the petition was admitted, the petitioner withdrew Civil Suit No. 1329 of 1971 which was filed by him in the City Civil Court at Ahmedabad.

11. At the hearing of the petition, Mr. K. S. Nanavati, learned advocate appearing on behalf of the petitioner, expressly gave up the challenge to the reservation made in the principal town planning scheme and to the allotment of the land in question made under the final town planning scheme (varied) for the purpose of post office. He confined the challenge to the order of the Estate and City Improvement Officer at Annexure F and to the vires of the provisions of Sections 53 and 54. The following points were urged by him in support of the said challenge:

On a true construction of Section 53 of the Act only such lands as are required by the local authority vest absolutely in it and since the petitioner's land is not required for the purpose of the local authority but it is allotted for post office which is a public purpose of the Union Government, the said land cannot vest in the local authority under Section 53 (a) and the petitioner cannot be deprived of its ownership and possession except by having recourse to the provisions of the Land Acquisition Act, 1894 or by private negotiations. The notice, Annexure 'F', is, therefore, without authority of law.

II. If the provisions of Section 53 are so construed as to result in the vesting in the local authority of lands which are required not only for its own purpose but also for the purpose of other authorities such as the Union or the State , Government, its provisions read with those of Section 67 are violative of Article 14 since a citizen can be deprived of his property at the sweet will of the Government in either of the two ways, namely, under the provisions of the Town Planning Act or under the provisions of the Land Acquisition Act. The former mode of deprivation of property is more prejudicial than the latter since the compensation payable there under is determined at the rate prevailing on the date of the declaration of intention which is usually many Years prior to the date of actual vesting. The conferment of such discriminatory power without any guidelines offended the equality clause and the guarantee of equal protection of law.

III. Section 54 of the Act, in so far as it confers powers of summary eviction on the local authority, discriminates amongst those in occupation of land required by the local, authority under the final scheme in that it leaves it open to the local authority at its own sweet will to adopt either the ordinary remedy of civil suit or drastic summary remedy under the said section and there being no guiding principle or policy, it permits the local authority to pick and choose occupants of such land for the application of the more drastic procedure under the said section. The section is, therefore, violative of the equal protection clause contained in Article 14.

1V. Section 54 also impinges upon the fundamental right guaranteed by Article 19(1)(f) since it suffers from the vice of procedural unreasonableness in as much as (a) it provides for summary eviction of occupant of land without affording to him an opportunity to show, cause and (b) even if such an opportunity is implied having regard to the nature of the power and the impact of its exercise on the rights of the citizens, the local authority which is very much interested in the possession of the land which is vested in it, is itself constituted the authority to determine whether the occupant is liable to be summarily evicted.

12. We would have ordinarily taken, up these points for consideration seriatim. However, in the present case, it would be convenient to deal with points Nos. II, III and IV together at the outset in view of the fact that they are liable to be rejected in limine on the grounds that: (i) the question of the constitutional validity of the relevant provisions of the Act is no longer res integra; (ii) the Petitioner having been deprived of his title to the land in question upon the reconstitution of the plot on its allotment to the postal authorities, he has no locus standi to invoke Article 19(1)(f) in relation to the said land and (iii) the petitioner is, in any case, precluded from challenging those provisions as ultra vires. In the following paragraphs we give our reasons in support of the aforesaid view.

13. The constitutional validity of the provisions of the Act has been the subject-matter of at least three reported decisions of the Supreme Court and one reported decision of this Court. In Maneklal, Chhotalal v. N. G. Makvana, AIR 1967 SC 1373, the challenge to the Act as a whole in the context of legislative competence as well as of Articles 14, 19(1)(f) and 31 was considered. The main contention urged on behalf of the petitioners in that case was that the State Legislature was not competent to pass the Act as it was not covered by any of the entries in List II or List III of the Seventh Schedule to the Constitution and that 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 un authorised and unreasonable and that the powers vested in the Town Planning and other authorities under the Act were unguided, arbitrary and unconstitutianal and as such in conflict with the fundamental rights of the petitioners under Articles 14, 19(1)(f) and 31 of the Constitution. After reviewing the provisions of the Act and examining the substantive and procedural aspects it was held (see paras 45 to 53 of the report) that the Act imposed only reasonable restrictions and that it was saved under Article 19(5). The challenge based on Article 14 was rejected inter alia on the ground that the Act did not confer arbitrary or unguided Powers. It was further found that there was no deprivation of property without compensation on account of the framing of a scheme under the Act and that Article 31 was, therefore, not attracted. In paragraph 53 of the report, it was, reiterated that the Act as a whole must be sustained.

14. Then next in point of time is the decision in K. L. Gupte v. The Corporation of Greater Bombay, AIR 1968 SC 303.The petitioners in that case challenged Sections 9, 10, 11, 12 and 13 of the Act as violative of Articles 14 and 19(1)(f). The scheme of the Act was again considered in detail and the validity of the provisions in question was upheld in the context of both those articles. While doing so, however, it was pointed out that the validity of the Act was not called in question for the first time before the Supreme Court in that case and that in Maneklal's case (AIR 1967SC 1374) (supra) the Act as a whole came up for scrutiny ,before the Supreme Court. It was further pointed out that there was great deal of similarity between Maneklal's case and Gupte's case, (AIR 1968 S1C 303) (supra) although the objections raised were not quite the same. It was observed that in Maneklal's case the Act bad been found, after consideration of its different sections, to be a valid enactment. In spite of this position, however, the challenge to the various sections mentioned earlier was considered and rejected on merits.

15. In State of Gujarat v. Shantilal, AIR 1969 SC 634, the question of the vires of Sections 53 and 67 specifically came up for consideration again before the Supreme Court in the context of Article 31(2) read with Articles 31(2-A), 19(1)(f), and 14 of the Constitution. It was held that the said sections were not violative of Article 31(2) read with Article 31(1-A) since the relevant provisions of the Act laid down principles of valuation which were not irrelevant and compensation payable accordingly could not be regarded as illusory. As regards the contention that the statute violated Article 19(1)(f) since it did not meet the test of reasonableneps, it was held, in the first place, that the Act being a law made under clause (2) of Article 31 was not liable to be challenged on the ground that it imposes unreasonable restriction upon the right to hold or dispose of property in view of the decision in Smt. Sitabati Debi v. State of U. P., (19,67) 2 SCR 949 and, secondly, that the validity of the statute in the context of Article 19(1)(f) could not depend upon whether in a given case it operates harshly and that, therefore, merely because in a given case considerable time might have elapsed since the declaration of intention to make the scheme and hence the market value of the property compulsorily acquired would be determined with reference to a date many years prior to the date of extinguishment of title, the relevant sections could not be held ultra vires as being unreasonable (see para. 52 of the report). The challenge under Article 14 was based on the ground that whereas if the land required for the purpose of a local authority were to be acquired under the provisions of the Land Acquisition Act, 1,894 compensation would be payable as on the date of the issuance of Section 4 notification, in ewe of acquisition of land for the purpose of a local authority under the provisions of the Act, compensation will be determined at the rate prevailing on the date of the declaration of intention which would ordinarily be a rate prevailing many years prior to the date of the notification under Section 4. The argument was negatived on the ground that there was no option to acquire land either under the Land Acquisition Act or under the Town Planning Act and that once the draft town planning scheme is sanctioned, the land becomes subject to the provisions of the Town Planning Act and on the final Town Planning Scheme being sanctioned, by statutory operation the title of the various owners is readjusted and the land needed for a public purpose vests in the local authority (see para. 54 of the report).

16. In Mangalji.bhal Roopajibhai v. State, (1972), 13 Gui LR 649 Section 54 was challenged on the ground that it conferred discretionary power on the local authority without any guideline to adopt, either the ordinary remedy of civil suit or the drastic summary remedy under the said section for evicting an occupant of land which was the subject-matter of the Town Planning Scheme. It was also urged that Rule 27 of the Bombay Town Planning Rules, 1955 did not comply with the requirements of natural justice in as much as it did, not contemplate an opportunity being afforded to the occupant, of land to show cause why he should not be summarily evicted. A Division Bench of this Court considered the entire scheme of the Act and came to the conclusion that so far as the land required by the local authority under the final scheme was concerned, the right to own it and to obtain possession of it with the corresponding liability of the occupant of such land to eviction did not exist under the general law prior to the making of the final scheme and that it was a right or liability created for the first time by the final scheme which was to be read as a part of the Act. So also the right to own the reconstituted plot and to obtain possession of it with the corresponding liability of the previous owner of such reconstituted plot to eviction did not exist under the general law prior to the making of the town planning scheme but it was a right or liability created for the first time by the final scheme which was, as it were, incorporated in the Act. The Act, according to the Division Bench, while creating the new rights and liabilities gave a special and particular remedy for enforcing them under Section 54 and the remedy of summary eviction was, therefore, an exclusive remedy and the liability to eviction under Section 53 (a) or (b) could not be enforced by the ordinary remedy of a suit. As regards the other ground of challenge, it was found that the power of summary eviction conferred on the local authority under Section 54 was quasi-judicial having regard to the nature of the power conferred, its impact on the rights of the occupants of land and the consequences ensuing from the exercise of the power. The power was, therefore, required to be exercised in conformity with the principles of natural justice and if there was any violation of the principles of natural justice, the exercise of the power would have to be struck down as invalid. The provisions of Section 54 and Rule 27 were then considered in detail and it was pointed out that those provisions did not exclude the observance of the principles of natural justice. The basic minimum requirement of natural justice, namely, that the occupant of land who is sought to be summarily evicted must be told what are the grounds on which he is sought to be so evicted and that he must be afforded an opportunity of showing cause against the action proposed to be taken against him were read into the statutory provisions by implication.

17. The foregoing summary of the decisions of the Supreme Court in three cases and the decision of this Court in one case establishes beyond doubt that the challenge to the constitutional validity of the relevant provisions of the Act is not open. The decision in Maneklal's case, (AIR 1967 SC 1373) (supra) upheld the validity of the Act as a whole and, that decision was so read in Gupte's case, (AIR 19,68 SC 303) (supra). Still, however, in Gupte's case (supra) and' Shantilal's case (AIR 1969 SC 634) (supra) the validity of Ss. 9, 10, 11, 12, 13, 53 and 67 was again considered in the context of Articles 14, 19(1)(f) and 31 and upheld. In Mangeljibhai's case (1972) 13 Guj LR 649) (supra) the validity of Section 54 in the context of Article 14 came up for consideration and was upheld. The decision in Shantilal's case (supra) specifically covers, the second ground raised on behalf of the petitioner in the present petition. The decision in Mangaljibhai's case specifically covers the challenge based on ground III and ground IV (a) in the present petition. Ground IV (b), though not specifically raised in these cases, would be covered by the decision in Maneklal's case (supra) which, as stated earlier, upheld the validity of the Act as a whole after considering its entire scheme. We are, therefore, of the opinion that it is not open to the petitioner to challenge the validity of any of the sections of the Act on the ground that it infringes upon his fundamental rights.

18. Mr. K. S. Nanavati, however, contended that in none of the abovementioned cases the Court was called upon to determine the validity of Section 54 on the ground at IV (b) as formulated hereinabove and that, therefore, challenge to the said section on the said ground was res integra. The submission, in our opinion, is misconceived, Once the validity of the Act as a whole has been upheld after considering the various provisions of the Act and taking into account both the procedural as well as substantive aspects, it cannot possibly be urged that the validity of a particular section is still open to challenge because it has not been specifically considered. As observed in the majority decision in Sornawanti v. State of Punjab, AIR 1963 SC 151 the binding effect of a decision does not depend upon whether a particular argument was considered therein or not provided that the point with reference to which an argument was subsequently advanced was actually decided. Once it is found that the validity of the Act as a whole has been upheld, merely because the aspect now presented based on the guarantee contained in Article 19(1)(f) was not expressly considered or a decision given thereon, it will not take away that the title of the petitioner in the land the binding effect of the said decision (see T. G. Mudaliar v. State of T. N., AIR 1973 SC 974 at p. 978). These observations were made with reference to a binding precedent of a Court of co-ordinate or concurrent jurisdiction and they will apply with greater force to the declaration of law made by the Supreme Court which binds us under Article 141.

19. We might mention that an argument similar to the one advanced by Mr. Nanavati was recently considered by us in the context of the constitutional validity of some of the sections of this very Act in Special Civil Application No. 747 of 1971 decided on 6-9-1974 (Gui.). We have there held that the challenge to the provisions of the Act on the ground of violation of fundamental rights is not res integra and that merely because a new point is raised touching the aspect of the vires of the Act which is painted in a different hue or fitted with new feathers it would not open the doors for a fresh challenge.

20. The challenge to the constitutional validity of Sections 53 and 54 must, therefore, fail on the short ground that it is concluded by the decisions of the Supreme Court as well as of this Court.

21. The second ground on which the challenge to Section 54 in the context of Article 19(1)(f) must fail is that the petitioner's title to the plot in question has been finally determined by its reconstitution and that therefore, he has no subsisting proprietary right in the said plot which he could protect under Article 19(1)(f). In Mangaliibhai's case,((1972) 13 Gui LR 649) (supra), this Court while considering the scheme of the Act, observed that broadly speaking the making of town planning schemes is dealt with in Sections 21 to 53 while the execution of the town planning schemes is provided for in Sections 54, 55 and 71 to 78. As we shall point out a little later in the course of this judgment, by allotment of the petitioner's land to the postal authorities for the purpose of post office, his title thereto stands determined under Section 53 (b). It is not open to the petitioner to challenge the constitutional validity of the said section and there is no other ground on which the determination of the title can be challenged. Section 54 relates merely to the eviction of the person not entitled to occupy any land under the town planning scheme by summary eviction. When action is taken under the said section, there is no subsisting title of the occupant in the land in question with the result that in the conext of the said section the provisions of Article 19(1)(f) cannot possibly be invoked. We are of the view, therefore, that the title of the petitioner in the land in question having been determined by its reconstitution upon allotment thereof to the postal authorities, under the final varied scheme, it is not open to the petitioner to challenge the power of summary eviction conferred under Section 54 on the ground that it violates fundamental rights under Article 19(1)(f).

22. There is still one more ground on which the challenge to the constitutional validity of the relevant provisions of the Act at the instance of the petitioner is barred in this writ petition. The petitioner seeks the writ of mandamus which is not a writ of course or a writ of right but is, as a rule, a matter for the discretion of the Court. Upon a prerogative writ of that nature there may arise many matters of discretion which may induce the court to withhold the grant of it matters connected with delay or possibly with the conduct of the parties (see Bombay Municipality v. Advance Builders, AIR 1972 SC 793 at p. 800). Now, as stated earlier, the petitioner had earlier filed Special Civil Appln. No. 425 of 1956 (Gui.) in this Court. It is not in dispute that the validity of the Act as a whole was inter alia challenged in the said writ application. On the issue of the rule, the respondents appeared and filed affidavits and contested the petition on merits. The petition was ultimately withdrawn and the Court which allowed the withdrawal made a speaking order. The order was in the following terms:-

'Mr. K. G. Vakharia, learned advocate appearing on behalf of the petitioner, states that the only point raised in this petition relates to the validity of the provisions of the Bombay Town Planning Act, 1954 and since that point is already covered by two decisions of the Supreme Court, nothing survives in the petition. He, therefore, withdraws the petition and the petition accordingly stands withdrawn. There will be no order as to costs of the petition.'

The consequence of the withdrawal of the said writ petition in the eye of law was that it stood dismissed on merits albeit on a concession made by or on behalf of the petitioner to the effect that the question of the constitutional validity of the Act was no longer open in view of the decisions of the Supreme Court. In other words, the effect of the dismissal by withdrawal was that the challenge of the petitioner to the actions of the respondents under the Act on the ground that the said Act itself was ultra vires stood concluded by an adverse decision of this Court based on his own concession. It is not the case of the petitioner as set out in the petition that the concession was wrongly made by his counsel. Indeed such a contention could not have been raised in the view that we have taken as regards the wide ambit of the pronouncement of the Supreme Court and it was, therefore, rightly not raised. In these circumstances, the petitioner's complaint in the present petition directed against the actions of the respondents under the same statute and based on identical grounds is barred by the general principles of res judicator or at least by principles underlying the doctrine of res, judicator, namely, that there should be finality in litigation and that a person should not be vexed twice over in respect of the same cause or matter. In any case, the petitioner having himself abandoned without reservation the previous writ proceeding initiated in this, very Court with eyes open and, after due deliberation cannot now be allowed to pick up the thread after a lapse of five years and to start a fresh proceeding to reagitate the very point which he expressly gave up in the previous proceeding. He had set the machinery of law in motion but solemnly brought it to an abrupt halt, indeed forsaken it in midstream, in proclaimed obeisance to the decisions of the Supreme Court. He cannot be permitted to resume it now after a number of years and be heard to say that despite his earlier proclamation, he still wishes to persist in raising the same point in this litigation. Courts moved upon a prerogative writ are not the forum to flog a dead horse or to resuscitate a ghost already laid to rest. Me doctrine of abandonment has been expressly invoked and recognised in Trilokchand Motichand v. H. B. Munshi, AIR 1970 SC 898 even in a proceeding under Article 32 and relief was refused to the petitioner in that case (although the point that he was agitating was covered in his favour by a Supreme Court decision given in a different case) on the ground that after an adverse decision of the High Court in Jug writ petition under Article 226 be had not moved the Supreme Court by way of appeal but bad chosen to move the Supreme Court directly after a number of years only when 'another person more adventurous than him in his turn got a favourable decision' meanwhile on a point not urged by the petitioner in his writ petition before High Court (see the decision of Hidayatullah C. J. at pages 902 and 903). The principle on which the Supreme Court acted in that case will apply appositely and with greater force to a situation such as that which obtains in the present case. We are, therefore, of the opinion that even on that ground the petitioner's challenge to the constitutional validity of the Act must fail.

23. Mr. K. S. Nanavati, however, urged that, in the previous proceedings the wires of Section 54 could not at all have been challenged, inasmuch as at that stage the final scheme (varied) was not sanctioned and that, therefore, such a challenge, even if made, was premature and withdrawal of the previous petition could not preclude the challenge to the said section in this writ petition since the real threat of dispossession has now arisen. We are unable to accede to this argument. It runs counter to the wide amplitude of the challenge in the previous petition. We called for the original petition from the records of the Court and on perusal found that the challenge there was levelled in the broadest possible terms in that the whole of the Act was challenged. That apart, we do not think that the challenge could be said to be premature. As stated earlier, broadly speaking the scheme of the Act is that it deals with the making of the Town Planning Scheme in one part and the implementation or execution of the scheme in the other part. Once the final scheme is sanctioned, Section 53 will come into operation and there might be divesting or readjustment of titles of the occupants of the land subjected to the scheme. Section 54 will then be attracted and the person un- authorisedly occupying any land will be liable to be evicted there under. Such a person could not possibly challenge the vires of Section 54, after the scheme is sanctioned, under Article 19 as held earlier. The petitioner could, therefore, have bright fully challenged the whole of the Act at the earlier stage and though he might not have expressly pleaded the invalidity of Section 54, he must be deemed to have brought it into question in view of the wide ambit of his challenge and abandoned it.

24. As a result of the foregoing discussion, it would appear that the challenge to the constitutional validity of Sections 53 and 54 cannot be entertained in this petition. Grounds Nos. II, III and IV raised on behalf of the petitioner, are, therefore rejected.

25. That takes us to the only point which survives for our consideration (Ground I) and it turns upon the interpretation of Section 53 of the, Act and the provisions of the scheme in question. The argument on behalf of the petitioner was that on a true construction of Section 53, only such lands vest absolutely in the local authority as are required by it and since the petitioners land is not required for the purpose of the local authority but is allotted to the postal authorities, for a public purpose of general nature, it cannot vest in the local authority under Section 53, clause (a) and the petitioner cannot be deprived of its ownership and Possession except in accordance with the provisions of the Land Acquisition Act, 1894 or by private negotiations. Reference was made in sup port of this submission to certain Sections of the Act and it was urged that they made a distinction between reservation and allotment of land for a public purpose and for the purpose of the local authority and that the scheme of the Act was to vest in the local authority only such land as was required by it and to acquire under the ordinary law the land which was reserved for public purposes other than those of the local authority. In the present case, proceeded the argument, the petitioner's land was allotted for post office which was a purpose of the Union or a public purpose of general nature and the land allotted for such a purpose could not vest in the local authority and result in divesting of the title of the petitioner under the Act making it possible for the local authority to exercise its power of summary eviction in respect of such land.

26. The submission made on be half of the petitioner proceeds, in our opinion, upon a fundamental misconception arising out of the misreading of the provisions of the Act. It is not necessary for our present purposes to go through the several provisions of the Act. How ever, in order to arrive at a proper inter-pretation of Section 53, which cannot be construed in isolation, we would examine briefly the scheme of the Act of which it forms a part. The Act, as its preamble shows, was intended to be a consolidating and amending Act relating to town planning and it was enacted with a view to ensure that town planning schemes are made in a proper manner and their execution is made effective by local authorities. The legislature had to tackle a situation arising out of a continuing influx of people from the villages to the towns and cities for the purpose of residence and employment and also, out of the natural development which was taking place in and round about many cities which also in its turn attracted people from outside. Most of the towns and cities had grown up without any planning with the result that public amenities therein which were to be provided by the local authorities were wholly inadequate for the already enlarged and still expanding population. The amenities such as drain age, water supply etc. were overburdened and inadequate. It is to remedy this situation that the Act conferred powers upon the local authorities to take measures for scientific town-planning. The process commences with the declaration of intention to make a town planning scheme by the local authority. The local authority then makes in consultation with the Consulting Surveyor a draft scheme for the area in respect of which the declaration has been made and publishes it in the prescribed manner. The draft scheme must contain various particulars and amongst other things it must provide for the following matters: (i) how it is proposed to alter the boundaries of original plots so as to constitute new plots; (ii) the size and shape of. every reconstituted plot, so far as may, be, to render it suitable for building purposes and where the plot has already been built upon, to ensure that the building, as far as possible, complies with the provisions of the scheme as regards open space and (iii) allotment of or transfer of ownership of the reconstituted plots and for compensation. The draft scheme might also, make provision inter alia for allotment or reservation of lands for roads, open spaces, gardens, recreation grounds, schools, markets, green belts, dairies, transport and communication facilities and public amenities of all kinds. The persons affected by the draft scheme have a right to file their objections to the proposed scheme and after considering the objections and modifying the scheme in the light of the objections, the local authority is required to submit the same to the State Government for its sanction. The State Government may sanction the draft scheme or refuse to give its sanction. Where the draft scheme is sanctioned, the State Government would appoint a Town Planning Officer who would usually be a qualified and experienced town planner and he would scrutinize the proposals of the local authority in all its details and give his decision. He has the power to make variations and in respect of technical matters such as roads, reservation or allotment of land for public purposes etc. his decision is final. There is an appeal provided against the decision of the Town Planning Officer in respect of other specified matters including compensation to the Board of Appeal. The Town Planning Officer has then to finalise the scheme in accordance with his decision except to the extent to which his decision may have been superseded by the decision of the Board of Appeal. The final scheme as drawn by the Town Planning Officer is then sent to the State Government for sanction and the State Government may sanction the final scheme or refuse to sanction it. When the State Government sanctions the final scheme, it comes into force on such date as may be fixed by the State Government and the final scheme becomes effective from such date. The scheme so sanctioned has the effect as if it were enacted in the Act: it acquires legislative force as if it were written out in the Act itself.

27. Now, once the final scheme is sanctioned, by statutory operation, the title of the various owners is readjusted and these consequences are provided for in Section 53 which reads as under:-

'53. On the day on which the final scheme, comes into force:-

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

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

It will be seen that under clause (a) all lands in the area, which are subjected to the scheme, to whomsoever they might have originally belonged, would absolutely vest in the local authority if under the scheme the same are allotted to the local authority. As a necessary corollary to this, all rights of the private owners in such lands would determine. Similarly, under clause (b), in respect of those lands which do not vest absolutely in the local authority but which are otherwise reconstituted, all rights in the original plots stand determined and the reconstituted plots become subject to the rights settled by the Town Planning Officer. The original plots might completely disappear or be substantially cut down and their owners might be paid compensation or allotted reconstituted plots at some other place. New ownership rights might come into existence on allotment of lands where none existed prior to the sanction of the scheme. Upon the operation of clause (a) or (b),as the case may be, some of the persons who were original occupants of lands might cease to become entitled to occupy the lands in question. Such persons will have to be evicted from such lands and possession of the lands will have to be handed over to those who become entitled to the same under the final scheme. The legislature has provided a special machinery for this purpose in Section 54 which reads as under:-

'54. 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.'

This section confers power of summary eviction on the local authority and authorises it to evict occupants who cease to be entitled to occupy the lands in their occupation under the final scheme. These two sections, namely, Section 53 and Section 54, read together provide for divesting of title and acquisition of title as well as for eviction of persons who have ceased to be entitled to occupy the land in respect of which titles have been readjusted. It would thus appear that there is a complete scheme or Code of acquisition Laid down in the Act, As observed by the Supreme Court in Shantilal's case, (AIR 1969 SC 634) (supra), when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all and land required for any of the purposes of the Town Planning Scheme cannot be acquired otherwise than under the Act. Against this background we have to determine the validity of the contention under consideration.

28. Now, in the present case, it is the case of the respondents as set out in the affidavit in reply filed by K. S. Mehta, Under Secretary to the Government of Gujarat, Panchayats and Health Department, that final plot No. 51 of the petitioner was allotted under the varied final scheme to the postal department for setting up a post office and that an award to that effect was made by the Town Planning Officer and the petitioner was ordered to be paid compensation for the land on the basis of the value Prevailing on the date of the declaration to vary the final scheme. The petitioner's appeal against the award, as stated earlier, also failed. At the hearing of the petition, the respondents produced before us the Redistribution and Valuation Statement prepared in the prescribed Form B under Rule 17 read with Rule 29 of the Bombay Town Planning Rules, 1955. The statement shows that the land in question has been allotted to the Post-Master General, Ahmedabad, who is shown as the owner of the land, for the purposes of post-office. The word 'allotment' in its grammatical variation appears in some of the provisions of the Act as well as in the scheme which is to have effect as if it were enacted in the Act and it will have to be judicially interpreted. The expression, according to the Shorter Oxford English Dictionary, means:

'To distribute by lot, or in such way that the recipients have no choice; to assign shares authoritatively; to apportion; to assign as a lot or portion to; to appropriate to a special person or purpose. ?,

In the context, therefore, the expression 'allot' would mean to assign or apportion any land as owner, by virtue of the authority conferred by the Act, to any person or authority for any purpose. Now, the land in question having been allotted to the postal authorities under the final varied scheme, there has been an-alteration of the ownership of the land. Such an alteration having, been made in the process of the making of the town planning scheme, it has resulted in to the reconstitution of the plot (see Section 2 (9)). and upon such reconstitution the right of the petitioner to the land in question would stand determined under clause (b) of Section 53. The determination of the title in the present case has, therefore, taken place under clause (b) and not under clause (a) of See. 53 and the entire basis of the petitioner's case is ill-founded. Furthermore, as pointed out by the Supreme Court in Shantilal's case, AIR 1969 SC 634 (supra), there is no option under the Act to acquire the land under the Land Acquisition Act. Once the draft Town Planning scheme is sanctioned and the land becomes subject to the provisions of the Act, the title of the various owners is readjusted by statutory operation. The power of summary eviction under Section 54 could, 'therefore, be straightway invoked by the local authority for evicting a person who has ceased to be entitled to occupy the land under the final scheme. It must be remembered that the local authority is exclusively entrusted with the duty of the framing and implementation of the town planning scheme and to that end it has been invested with almost plenary powers, Since development and planning is primarily for the benefit of the public, the local authority is under an obligation to perform its duty in accordance with the provisions of the Act (see Advance Builders case, AIR 1972 SC 793 (supra)). The impugned notice at Annexure 'F' was, therefore, validly issued by the respondent concerned -and no objection can possibly be raised against it.

29. The provisions to which reference has been made on behalf of the petitioner have no application. They relate to a stage prior to the sanction of the final scheme when the scheme is still in its formative stages. However, once the scheme is framed, as pointed out earlier, there is no question of acquisition of title by an outside process. The title stands transferred under the provisions of Section 53 itself. We are, therefore, of the opinion that on a true construction of Section 53, in the present case, the petitioner ceased to be entitled to occupy the land in question upon its reconstitution under Section 53 (b) and that as such he was liable to be evicted under Section 54. The first ground urged on behalf of the petitioner must also, therefore, be rejected.

30. When confronted with this position, Mr. K. S. Nanavati urged that it was not permissible to hold that the title of the petitioner to the land in question has determined under Section 53 (b). In this connection he invited our attention to paragraph 38 of the affidavit in-reply of K. S. Mehta wherein it has been stated that upon the allotment of the land in question to the Post-Master General, clause (a) of Section 53 was at- tracted. It was urged that this averment made in the affidavit implied that according to the respondents the land was required by the local authority and had vested absolutely in it under Section 53 (a) of the Act and that Section 53 (b) was not at all attracted. It was also urged that since a different case was being placed for the consideration of the Court for the first time at the hearing of the petition and after the arguments were concluded, opportunity should be given to the petitioner to meet that case. We are unable to accede to these submissions. As stated earlier, in paragraphs 9 and 10 of the afridavit of K. S. Mehta, respondents have clearly come forward with the case that under the final scheme the land in question was allotted to the postal authorities and that compensation was awarded to the Petitioner for the determination of his right in the said land. The relevant actual data was, therefore, already furnished in the affidavit. The Redistribution and Valuation Statement was produced at the hearing only in support of this averment. The statement is a final varied scheme and is, therefore, a public document. In fact, it is in the nature of a legislative enactment in the sense that it takes effect as if it were enacted in the Act. Therefore, no objection can possibly be taken to its production at the hearing or to a reference being made to it. We have held, while construing the word 'allotment' that it means that the land has been assigned as an owner to the 'Postal authorities and consequently there has been -a reconstitution of the-plot. In these circumstances, even if a wrong provision of law is referred to in the affidavit filed on behalf of the respondents, it cannot preclude them or the Court from arriving at the right conclusion on the basis of the statutory language. Law is not required to be pleaded and even if a wrong provision of law is pleaded, it would always be open to a party litigant to correct the mistake and to advert to the right provision of law at the hearing of the cause. We are, therefore, not impressed by the argument that there is any change of front on the part of the respondents on the question of determination of' title of the petitioner to the land in question. At any rate, the change, if any, is not of such a nature as would prejudice the petitioner. There is also no question of granting further time to the petitioner to meet the case. No affidavit in rejoinder was filed by the petitioner challenging the specific version of the respondents that the land was allotted to the postal authorities. Besides, in view of the Redistribution and Valuation Statement produced at the hearing there is little that could be urged by the petitioner on the point and giving of an opportunity for filing a further affidavit for the interpretation of the provisions of the scheme would be a futile exercise. In these circumstances, the request for time is also rejected.

31. We might mention that on the view which we are taking, even some of the grounds on which the challenge to the constitutionality of the relevant provisions of the Act was based, would seem to be ill-founded. The challenge was founded on the assumption that the land in question had vested in the local authority under Section 53 (b). The assumption is not warranted and to that extent the said challenge was misconceived.

32. These were the only grounds urged at the hearing of the petition and since there is no merit in any of them, the petition fails and is dismissed. Rule discharged with costs.

33. Petition ismissed.


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