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Kaushikprasad Chandulal Mahadevia and anr. Vs. the Ahmedabad Municipal Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR993
AppellantKaushikprasad Chandulal Mahadevia and anr.
RespondentThe Ahmedabad Municipal Corporation and ors.
Excerpt:
- - 189 as a reconstituted plot was concerned, the first petitioner was satisfied with it and did not raise any objection against the same. this decision was taken by the second respondent on 12th august 1959 but the first petitioner did not come to know about the same until the middle of may 1960. as soon as the first petitioner came to know about it, he immediately protested against the same to the municipal commissioner and also carried on correspondence with the municipal commissioner as well as the second respondent but there was no response and he was ultimately constrained to file the present petition challenging the validity of this decision taken by the second respondent. this decision of the second respondent was clearly not bona fide in the interest of the scheme it was.....p.n. bhagwati, c.j.1. there is a plot of land situate in shahibaug, ahmedabad, which at one time belonged to the first petitioner. the northern part of this plot of land bore survey no. 186a and the southern part bore survey no. 186b. the draft scheme relating to the town planning schene no. 14 of shahibaug, ahmedabad, was sanctioned by the state government by a notification dated 9th december 1954 issued under section 14(2) of the bombay town planning act, 1915 (hereinafter called the old act) and under the draft scheme as sanctioned, this plot of land which was designated old plot no. 107 was retained as one single plot and given final plot no. 189. the second respondent was appointed arbitrator to decide various matters specified in section 30 of the old act and pursuant to this.....
Judgment:

P.N. Bhagwati, C.J.

1. There is a plot of land situate in Shahibaug, Ahmedabad, which at one time belonged to the first petitioner. The northern part of this plot of land bore survey No. 186A and the southern part bore survey No. 186B. The draft scheme relating to the Town Planning Schene No. 14 of Shahibaug, Ahmedabad, was sanctioned by the State Government by a notification dated 9th December 1954 issued under Section 14(2) of the Bombay Town Planning Act, 1915 (hereinafter called the old Act) and under the draft scheme as sanctioned, this plot of land which was designated old plot No. 107 was retained as one single plot and given final plot No. 189. The second respondent was appointed arbitrator to decide various matters specified in Section 30 of the old Act and pursuant to this appointment, the second respondent entered upon his duties as arbitrator. In the meantine, the old Act was repealed by the Bombay Town Planning Act, 1954 (hereinafter referred to as the new Act) which came into force on 1st April, 1957 and by reason of Section 90 Sub-section (4) of the new Act, the appointment of the second respondent continued as if he were appointed Town Planning Officer under the new Act and the proceedings pending before him also continued as if they were proceedings before the Town Planning Officer under the new Act. The second respondent issued notices dated 27th November 1957 to the first petitioner giving him an oportunity to file objections in regard to the particulars set out in the draft scheme and the first petitioner accordingly filed objections against various particulars but so far as the allotment of final plot No. 189 as a reconstituted plot was concerned, the first petitioner was satisfied with it and did not raise any objection against the same. The first petitioner had thereafter no information as to what was happening until some time in the middle of May 1960 when the first petitioner came to learn for the first time that the second respondent had laid out a new road in final plot No. 189 along its eastern boundary, though no such road was proposed in the draft scheme as originally sanctioned by the State Government. The reason for laying out this new road, according to the respondents, was that on 5th August 1958, whilst the proceedings were pending before the second respondent, Respondents Nos. 5 to 7 who were owners of the immediately adjoining final plot No. 191 on the east, as members of a joint Hindu family, partitioned the said plot and as a result of the partition, the northern portion subsequently designated final plot No. 191 went to the share of respondents Nos. 5 and 6 and the southern portion which was given final plot No. 191A went to the share of respondent No. 7: respondent No. 7 had however no access to final plot No. 191A since no such access was provided in the partition through final plot No. 191, the second respondent therefore, in conformity with the principle of town planning that access should be provided to all plot-holders, laid out this new road in final plot No. 189 with a view to providing access to final plot No. 191A which would otherwise have been land locked and reconstituted final plot No. 189 into two plots, namely, final plot No. 189A and 189B in such a manner that the entire length of the new road extended upto the southern end of the eastern boundary of final plot No. 189A and provided access also to final plot No. 189B. This decision was taken by the second respondent on 12th August 1959 but the first petitioner did not come to know about the same until the middle of May 1960. As soon as the first petitioner came to know about it, he immediately protested against the same to the Municipal Commissioner and also carried on correspondence with the Municipal Commissioner as well as the second respondent but there was no response and he was ultimately constrained to file the present petition challenging the validity of this decision taken by the second respondent. During the pendency of the petition, the first petitioner sold final plot No. 189 to the second petitioner and the second petitioner was accordingly on an application made by it, added as a party petitioner to the petition. That is how there are two petitioners in the petition.

2. There were two grounds on which the validity of the decision of the second respondent to lay out a road in final plot No. 189 along its eastern boundary and to reconstitute final plot No. 189 into final plot Nos. 189A and 189B, was challenged on behalf of the petitioners and they were:

(A) There was in fact no partition of the original final plot No. 191 amongst respondents Nos. 5 to 7 on 6th August 1958 but it was merely a pretence put forward to lay out a new road in final plot No. 189 so that if, at any time in the future, there was partition amongst respondents Nos. 5 to 7 and final plot No. 191A was given to one of the coparceners on partition, it would not be necessary for respondents Nos. 5 to 7 to provide access to final plot No. 191A through final plot No. 191 thus affecting the value of that plot and this new road laid out in final plot No. 189 would be sufficient. The second respondent deliberately, with a view to obliging respondents Nos. 5 to 7, laid out this new road in final plot No. 189 so that respondents Nos. 5 to 7 may not have to suffer any detriment in respect of the size, shape or value of their plot in providing access to final plot No, 191 A. Even if it be held that there was partition on 6th May 1958, respondents Nos. 5 to 7 knew, when they partitioned their plot, that final plot No. 191A which went to the share of respondent No. 7 had no access and yet they made no provision for access through final plot No. 191 which went to the share of respondents Nos. 5 and 6 and in the circumstances, there was no justification for the second respondent to provide access to final plot No. 191A by laying out a new road through the petitioners' plot, leaving final plot No. 191 untouched. The second respondent however deliberately, in order to help respondents Nos. 5 to 7, laid out a new road in final plot No. 189 and with a view to showing that this action was not taken by him solely for the benefit of respondent No. 7, the second respondent divided final plot No. 189 into two plots bearing final plot No. 189A and 189B so as to create an appearance that the new road laid out by him was also for the benefit of final plot No. 189B. This decision of the second respondent was clearly not bona fide in the interest of the Scheme it was actuated by a collateral motive to improperly oblige respondents Nos. 5 to 7.

(B) The decision of the second respondent to lay out a road in final plot No. 189 and to reconstitute final plots Nos. 189A and 189B was invalid and ineffective since it was in contravention of the second proviso to Section 32 Sub-section (1) or, at any rate, in breach of Rule 21 Clause (4) of the Bombay Town Planning Rules, 1955.

We shall proceed to examine those grounds in the order in which we have set them out above.

3. Re. Ground (A): Taking up first the question whether the decision to lay out a new road in final plot No. 189 along its eastern boundary was bona fide or mala fide, it is necessary to state at the outset some few facts which clearly emerge from the record. Though an attempt was made on behalf of the petitioners to show that the partition of final plot No. 191 amongst respondents Nos. 5 to 7 was sham and bogus, it is difficult to resist the canclusion that in fact such partition must have taken place on 6th August 1958 as alleged by the respondents. The only circumstance on which the petitioners relied for the purpose of showing that no partition had taken place on 6th August 1958 was that the mutation entries showing the partition were not made in the Revenue records until 16th September 1960 and this circumstance, according to the petitioners, belied the case of respondents Nos. 5 to 7 that a partition had taken place amongst them on 6th August 1958. But this argument is wholly without force, for merely because the relevant mutation entries were made on 16th September 1960, it does not follow that no partition was effected prior to that date. It is quite possible that the necessary application for making transfer entries in the Revenue records was not made some time later. The more important piece of evidence on a point like this would be the application for making transfer entries rather than the transfer entries themselves, for the contents of the application would show when the partition was made but this evidence was unfortunately not produced on behalf of the petitioners. There is also one other circumstance which clearly shows that the partition must have been effected amongst respondents Nos. 5 to 7 prior to 15th September 1960 when the transfer entries were made in the Revenue records. The first petitioner himself in the letter dated 19th may 1960 addressed by him to the municipal Commissioner stated that the reason for laying out the road might be that 'there has been a partition between the owner brothers of my adjoining final plot No. 191.' There can therefore be no doubt that the partition was effected much earlier than 16th September 1960 and the case of respondents Nos. 5 to 7 that it was actually effected on 6th August 1958 cannot be turned down. It is apparent from the affidavit in reply filed by second respondent that the fact of the partition having taken place amongst respondents Nos. 5 to 7 on 6th August 1958 was brought to the notice of the second respondent and since it is an accepted principle in town planning that access must be provided to all plot-holders, the second respondent obviously with a view to providing access to respondent No. 7 to final plot No. 191A laid out a road in final plot No. 189' along its eastern boundary. It is no doubt true that when respondents Nos. 5 to 7 partitioned final plot No. 191 into two parts which are now final plots Nos. 191 and 191 A, they could have provided an access be final plot No. 191A through final plot No. 191 but the fact remains that they did not and the second respondent was faced with the problem as to how, in the circumstances access should be provided to final plot No. 191A. The second respondent obviously could not take a road through final plot No. 190 since that would considerably reduce the size of that plot and moreover it is apparent from the Plan which has been produced before us and marked Exhibit 'A' that it was not possible to take a road twenty-five feet in width through final plot No. 190 since there was a building upon it. The second respondent had therefore two alternatives before him; one was to lay out a road through final plot No. 191 and the other was to have it along the eastern boundary of survey No. 189. The second respondent chose the latter course and in doing so, it is not possible to say that the second respondent was guided by any collateral motive. In fact there is nothing alleged in the petition as to why the second respondent should have improperly favoured respondents Nos. 5 to 7 at the expense of the first petitioner. It is also significant to note that the road along the eastern boundary of final plot No. 189 which the second respondent laid out was only upto the northern extremity of final plot No. 191A and no further. Moreover, it may be noticed that from the point of view of town planning also, this road was most appropriate since it was in line with the twenty-five feet road proceeding northwords between final plots Nos. 193 and 194. It is true that the result of laying out this road was that the first petitioner was deprived of some part of his land but the second respondent tried to compensate him partly by giving him as full owner part of original plot No. 107A which was immediately adjoining final plot No. 189 on its northern side and in which he had only one-third share, so that the extent of deprivation of land suffered by him was only four per cent as against an average of fifteen to eighteen per cent ordinarily suffererd by plot-holders in a town planning scheme. The second respondent also divided final plot No. 189 into two re-constituted plots, namely, final plots Nos. 189A and 189B, in order to improve the situation of the plots as that final plot No. 189A may be flanked on its three sides by three roads and if the fleet petitioner at any time wanted to sell final plot No. 189B, there would be direct access to that plot through the new road. It is impossible to say in these circumstances that the decision of the second respondent to lay out a new road in final plot No. 189 and to reconstitute final plots Nos. 189A and 189B was so unreasonable or perverse as to lead to the inference of mala fides or collateral motive on the part of the Town Planning Officer.

4. Re. Ground (B): That takes us to the next contention of the petitioners that this decision of the second respondent was in contravention of the second proviso to Section 32 Sub-section (1) or at any rate in breach of Rule 21 Clause (4). In order to appreciate this contention, it is necessary to examine briefly the scheme of the new Act. The provisions of the new Act which are relevant to the discussion of this question commence from Section 18. Section 18 Sub-section (1) provides that a local authority may make one or more town planning schemes for the area; within its jurisdiction or any part thereof and Sub-section (2) of Section 18 enumerates matters for which provision may be made in the Town Planning scheme. These matters include in Clause (c): 'lay out of new streets or roads; '. Section 22 Sub-section (1) provides that a local authority having jurisdiction over any land may by resolution declare its intention to make a town planning scheme in respect of the whole or any part of such land and Sub-section (2) requires that within twenty-one days from the date of declaration of intention to make a town planning scheme, the local authority shall publish it in the prescribed manner and, despatch a copy thereof to the State Government. Section 23 says that within 12 months from the date of declaration of intention to make a scheme, the local authority shall make in consultation with the Consulting Surveyor a draft scheme and publish the same in the prescribed manner. The contents of the draft scheme are laid down in Section 25 and that section says that the draft scheme shall contain inter alia (a) the area, ownership and tenure of each original plot and (e) a full description of all details of the scheme under such sub-clauses of Clause (2) of Section 18 as may be applicable. One of the particulars which the draft scheme must therefore contain is the lay out of new streets or roads. Vide Section 25 Clause (e) read with Section 18 Sub-section (2) Clause (c). Section 27 provides that any person affected by the draft scheme may within one month from the date of publication of the draft scheme communicate in writing to the local authority any objection relating to such scheme and the local authority shall consider such objection and may, at any time, before submitting the draft scheme to the State Government, modify such scheme as it thinks fit. The local authority is then required by Section 28 Sub-section (1) to submit the draft scheme, with any modification which it may have made, together with objections which may have been communicated to it, to the State Government and also at the same time to apply for its sanction. Sub-section (2) of Section 28 provides that after receiving such application and after making such inquiry as it may think fit, the State Government may by notification in the Official Gazette, either sanction such scheme with or without modifications and subject to such conditions as it may think fit to impose or refuse to give sanction. Within one month from the date of publication of the sanction, the State Government has to appoint a Town Planning Officer under Section 31 Sub-section (1) and Section 31 lays down what shall be the duties of the Town Planning Officer. Clause (i) of Section 32 Sub-section (1) provides that 'in accordance with the prescribed procedure the Town Planning Officer shall after notice given by him in the prescribed manner, define and demarcate the areas allotted to, or reserved for a public purpose or purpose of the local authority and the reconstituted plots'. There are two provisos to Section 32 Sub-section (1). The first proviso says:

Provided that--

(a) he may make variation from the draft scheme;

(b) any variation estimated by him to involve an increase of 10 per cent in the costs of the scheme as is described in Section 64 or rupees one lakh, whichever is lower, shall require sanction of the State Government.

The second proviso is in the nature of a qualification to Clause (a) of the first proviso and it reads:

Provided further that the Town Planning Officer shall make no substantial variation without the consent of the local authority and without hearing any objections which may be raised by the owners concerned.

Section 87 confers rule-making power on the State Government and Clause (i) of Sub-section (2) provides that such rules may be made to determine inter alia 'the procedure to be prescribed under Section 32 and the notice to be given under Clauses (i) of Sub-section (1) of that section'. The Bombay Town Planning Rules, 1955 have been made by the State Government in exercise of the power conferred under Section 87 and Rule 21 of these Rules provides in Clauses (1) to (5) which are the only clauses material for the purpose of this petition:

21. (1) The Town Planning Officer shall give notice of the date on which he will commence his duties and shall state therein the time, as provided in Rule 30, within which the owner of any property or right which is injuriously affected by the making of the town planning scheme shall be entitled under Section 69 to make a claim before him. Such notice shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the Town Planning Officer.

(2) The Town Planning Officer shall, after the date fixed in the notice given under Sub-rule (1), continue to carry on his duties as far as possible on working days and during working hours.

(3) Special notice of at least three clear days shall be served upon the person Interested in any plot or in any particular comprised in the scheme, before the Town Planning Officer proceeds to deal in detail with the portion of the scheme relating thereto Such special notice shall be posted at the office of the Town Planning Officer. Such notice shall be given in the cases mentioned in Clauses (i), (ii) and (xiii) of Sub-section (1) of Section 32 and in any other cases where any persons have not been sufficiently informed that any matter affecting them is to be considered.

(4) The Town Planning Officer shall give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any.

(5) If during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme, the Town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons therefor. All such minutes shall be appended to the scheme.

On these provisions, the question which arises for consideration is whether before taking decision to lay out a road in final plot No. 189 and reconstituting final plots Nos. 189A and 189B, the second respondent was bound to give an opportunity to the first petitioner to raise an objection under the second proviso to Section 32 Sub-section (1) or to state his views in regard to the same as provided in Rule 21 Clause (4).

5. We may first take up the argument based on the second proviso to Section 32 Sub-section (1). Clause (i) of Section 32 Sub-section (1) imposes a duty and by necessary implication confers corresponding power on the Town Planning Officer to define and demarcate the areas allotted to or reserved for a public purpose as also the reconstituted plots add in doing so, says Clause (a) of the first proviso, the Town Planning Officer may make variations from the draft scheme. The Town Planning Officer can therefore make variation in the size, shape or areas of the reconstituted plots and also in the lay out of streets and roads but this variation which may be made by the Town Planning Officer is subject to two limitations. One limitation is that set out in Clause (b) of the first proviso: if the variation is estimated to involve an increase of ten per cent in the cost of the scheme or rupees one lakh, whichever is lower, the Town Planning Officer cannot make the variation without the sanction of the State Government. The other limitation is to be found in the second proviso and it is that if the variation is a substantial one, it shall not be made without the consent of the local authority and without hearing any objections which may be raised by the owners concerned. The first limitation obviously could not be invoked in the present case as it was not the case of the petitioners that the variation involved in laying out of new road in final plot No. 189 and reconstitution of final plots Nos. 189A and 189B was of a kind falling within Clause (b) of the first proviso. Reliance was placed only on the second limitation and the argument was that the variation was a substantial one and was therefore within the mischief of the second proviso. We do not think this argument is well-founded. There is nothing to show that the laying out of a new road twenty-five feet wide and four hundred fifty feet long in final plot No. 189 and the reconstitution of final plots Nos. 189A and 189B constituted a substantial variation in the draft scheme. What variation can be regarded as substantial for the purpose of attracting the applicability of the second proviso is not capable of precise definition nor is it possible to lay down any mechanical formula for the purpose of determining what is a substantial variation. Whether a particular variation is substantial or not must ultimately depend on the nature of the variation in its relation to the draft scheme and it must be determined with reference to facts of each case. Here there is no material bofore us on the basis of which we can say that the variation made by the second respondent was a substantial variation in the context of the draft scheme. It is no doubt true that a strip of land out of final plot No. 189 was designated as a road and to that extent, the first petitioner was deprived of a part of his land but the extent of deprivation in relation to the total area of the plot was negligible. The original plot of the first petitioner was 6970 square yards whereas the reconstituted final plots Nos. 189A and 189B admeasure in the aggregate 6700 square yards with the result that the total deprivation of land suffered by the first petitioner was only to the extent of four per cent. This variation can in no view of the matter be regarded as a substantial variation so as to attract the applicability of the second proviso to Section 32 Sub-section (1) and decision of the second respondent impugned in the petition cannot be struck down as being in contravention of that proviso.

6. The petitioners are however on firmer ground when we turn to the next contention based on the contravention of Rule 21 Clause (4). Before we go on to consider the construction of Rule 21 Clause (4), let us once again look at Section 32 Sub-section (1). That sub-section provides that the Town Planning Officer shall discharge the functions and duties enumerated inter alia 'in Clause (i) 'in accordance with the prescribed procedure.' The procedure prescribed by the Rules made under Section 87 must therefore be followed by the Town Planning Officer in defining and demarcating the areas allotted to or reserved for a public purpose or the reconstituted plots and in making variation in the draft scheme in regard to these matters and that would mean that the procedure set out in Rule 21 must be complied with. Rule 21 Clause (1) says that before the Town Planning Officer enters upon his duties he shall give notice of the date on which he will commence his duties and shall state therein the time within which the owner of any property or right which is injuriously affected by the making of the town planning scheme may make a claim before him. This is a general notice to be given by the Town Planning Officer before he commences his duties as a Town Planning Officer and thereafter, under Clause (2) of Rule 21, he would be entitled to continue to carry on his duties from day to day subject inter alia to the provisions of Clauses (3), (4) and (5) of Rule 21. Clause (3) of Rule 21 provides for giving of special notice before the Town Planning Officer proceeds to deal in detail with any particular portion of the scheme and it says that 'special notice of at least three clear days shall be served upon the person interested in any plot or in any particular comprised in the scheme, before the Town Planning Officer proceeds to deal in detail with the portion of the scheme relating thereto.' There is no dispute that such special notice was given to the first petitioner in the present case when the notices dated 27th November 1957 were issued by the second respondent to the first petitioner. Then comes Rule 21 Clause (4) which is the provision said to have been contravened by the second respondent in making the impugned decision. That clause provides in terms clear and complicity that the Town Planning Officer shall give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any. If any person is affected by any particular of the scheme, the Town Planning Officer is required under Clause (4) of Rule 21 to give such person sufficient opportunity of stating his views and is precluded from giving any decision till he has duly considered the representation, if any, made by such person. Now obviously laying out of a new street or road is a particular of the scheme as appears clearly from Section 25 Clause (e) read with Section 18 Sub-section (2) Clause (c) and therefore it would follow, on a plain natural construction of the language of Clause (4) of Rule 21, that if the first petitioner was affected by the lay out of a new road in final plot No. 189, the second respondent was bound to give to the first petitioner sufficient opportunity of stating his views and was not entitled to given a decision until he had duly considered the representation, if any, made by the first petitioner. The question is: could it be said that the first petitioner was affected by the lay out of a new road in final plot No. 189? The answer to this question is self-evident. It can hardly be disputed-and indeed no attempt was made on behalf of the respondents to dispute it-that the lay out of a new road in final plot No. 189 seriously affected the first petitioner as it deprived him of a part of his land and if that be so, it is difficult to see how the respondents can resist the applicability of Rule 21 Clause (4). The only argument urged on behalf of the respondents to repel the applicability of Clause (4) of Rule 21 was that if this construction was placed on Rule 21 Clause (4), it would be inconsistent with the second proviso to Section 32 Sub-section (1) and no rule should be so construed as to create inconsistency with any provision in the main Act. The respondents contended that the second proviso to Section 32 Sub-section (1) provided that no substantial variation shall be made by the Town Planning Officer without the consent of the local authority and without hearing any objections which may be raised by the owners concerned and the necessary implication from this provision was that if the variation was not a substantial one, it could be made by Town Planning Officer without the consent of the local authority and without hearing any objections from the owners concerned. But we do not think this is a correct way of looking at the second proviso to Section 32 Sub-section (1). That proviso is not a substantive enactment intended to lay down as to when the Town Planning Officer shall be entitled to make variation without the consent of the local authority and without hearing objections from the owner concerned. It is a proviso intended to introduce a limitation on the power to make variations in the draft scheme contemplated under Clause (a) of the first proviso. Clause (a) of the first proviso read with the preceding provision enacted in Section 32 Sub-section (1) says that the Town Planning Officer may make variations in the draft scheme 'in accordance with the prescribed procedure' but this power to make variations in the draft scheme is limited by the second proviso which says that it shall not be exercised by him without the consent of the local authority and without hearing any objections which may be raised by the owners concerned, if the variation is a substantial one. Where the variation is a substantial one, the second proviso says that, whatever be the procedure prescribed by the Rules, the Town Planning Officer shall not be entitled to make the variation unless he obtains the consent of the local authority and hears objections from the owners concerned. But that does not mean that if the variation is not a substantial one, the power to make variations in the draft scheme can be exercised by the Town Planning Officer without following the prescribed procedure. The second proviso does not have the effect of dispensing with the requirement of the words 'in accordance with the prescribed procedure' in the opening part of Section 32 Sub-section (1). If the prescribed procedure requires that in making variarion in the draft scheme, the Town Planning Officer shall give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered the representations, if any, even if the variation be not substantial, that procedure must be followed by the Town Planning Officer and he cannot seek refuge in the second proviso for disregarding that procedure. The rule enacted in Clause (4) of Rule 21 is a salutary rule intended to safeguard the property rights of citizens who are affected by the making of the Town Planning Scheme. The reason of the rule obviously is that if property rights of any person are going to be affected, he must have sufficient opportunity of stating his views so that he can bring before the Town Planning Officer any material facts and draw his attention to relevant aspects of the question. This provision is in line with Section 27 and Section 56 Sub-section (5) and merely carries forward the idea embodied in these two sections by introducing it also at the stage when the Town Planning Officer examines the scheme in the discharge of his functions under Section 32 and the construction we are placing upon it also accords with Rule 21 Clause (5). Moreover, this view which we are taking is also fair and just. We find it impossible to believe that the law-maker could have intended that the Town Planning Officer should be entitled to make any variation in regard to a plot belonging to a citizen, without his being given even an opportunity of stating his views in regard to the proposed variation. We are, therefore, of the view that before reaching the decision to lay out a new road in final plot No. 189 and reconstituting final plots Nos. 189A and 189B, the second respondent was bound to give to the first petitioner sufficient opportunity of stating his views and since that was admittedly not done in the present case, the decision of the second respondent must be held to be invalid as being in contravention of the mandatory requirement of Rule 21 Clause (4).

7. We, therefore, allow the petition and make the rule absolute by issuing a writ of mandamus quashing and setting aside the decision of the second respondent to lay out a new road in final plot No. 189 and to reconstitute final plots Nos. 189A and 189B. We may make it clear that it will be open to the third respondent who is the successor of the second respondent to proceed further in the matter in accordance with law. The first respondent will pay the costs of the petition to the petitioners.


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