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Mohanlal Jesingbhai Vs. P.J. Patel, Town Development Officer, Ahmedabad Muni. Corp. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR1035
AppellantMohanlal Jesingbhai
RespondentP.J. Patel, Town Development Officer, Ahmedabad Muni. Corp. and ors.
Cases ReferredKaushikprasad v. Ahmd. Muni. Corp.
Excerpt:
.....rule-making authority in rule 21 clauses (3) and (4) to denote owner of the land but are used in their plain natural sense to take in all persons, besides owners who are interested or affected by any particular of the scheme. the object of rule 21 clause (4) clearly is that all persons who are affected by any particular of the scheme must have an opportunity of stating their views and making their representation before a decision is taken by the town planning officer affecting them. 6. we are, therefore, of the view that the impugned variation in the draft scheme was made by the town planning officer in breach of the mandatory requirement of rule 21 clause (4) since no opportunity was given by him to the petitioner of stating his views and making his representations though the..........in a very narrow compass and turns on a true interpretation of rule 21 clause (4) of the bombay town planning rules, 1955. the fourth respondent is the owner of a plot of land bearing survey no. 662 situate in asarwa within the limits of the municipal corporation of ahmedabad. there is a superstructure on this plot of land which also belongs to the fourth respondent. a part of this plot of land together with the superstructure was let out by the fourth respondent to the petitioner about 40 years ago and since that date the petitioner is in possession of the same as a tenant. the superstructure in the possession of the petitioner consists of shops bearing municipal census nos. 1202/2, 1202/3 and 1202/4. the borough municipality by a resolution dated 31st october 1941 declared its.....
Judgment:

P.N. Bhagwati, C.J.

1. The question arising in this petition lies In a very narrow compass and turns on a true interpretation of Rule 21 Clause (4) of the Bombay Town Planning Rules, 1955. The fourth respondent is the owner of a plot of land bearing Survey No. 662 situate in Asarwa within the limits of the Municipal Corporation of Ahmedabad. There is a superstructure on this plot of land which also belongs to the fourth respondent. A part of this plot of land together with the superstructure was let out by the fourth respondent to the petitioner about 40 years ago and since that date the petitioner is in possession of the same as a tenant. The superstructure in the possession of the petitioner consists of shops bearing Municipal Census Nos. 1202/2, 1202/3 and 1202/4. The Borough Municipality by a resolution dated 31st October 1941 declared its intention to make a Town Planning Scheme, namely, Town Planning Scheme No. VIII and after the declaration of intention was sanctioned by the Government of Bombay, a draft scheme was prepared and published by the Borough Municipality and sanctioned by the Government of, Bombay on 16th September 1952. The plot of land belonging to the fourth respondent was given original plot No. 109 and it was substantially left untouched in the draft scheme. The petitioner, who was in possession of a part of the plot of land as a tenant, was, therefore, not affected by the proposals in the draft scheme and he did not take any steps to appear before the Arbitrator appointed by the Government of Bombay to discharge functions under Section 30 of the Bombay Town Planning Act, 1915. Whilst the proceedings were pending before the Arbitrator, the Bombay Town Planning Act, 1915, was repealed by the Bombay Town Planning Act, 1954, but by reason of the saving provision enacted in the new Act, the proceedings before the Arbitrator continued as if the Arbitrator were a Town Planning Officer appointed under the new Act. The Town Planning Officer, without giving any notice to the petitioner and affording him an opportunity of being heard, made a variation in the draft scheme by amalgamating a substantial part of original plot No. 109 with a public road and this decision was given by him on 27th August 1964. The final scheme was thereafter drawn up by the Town Planning Officer in accordance with the decisions given by him and also in conformity with the decisions given by the Board of Appeal and it was sanctioned by the State Government on 15th January 1966 and it came into force from 1st March 1966. The result of the coming into force of the final scheme was that a substantial part of original plot No. 109 vested in the Municipal Corporation for a public road and the petitioner ceased to be entitled to occupy the same. The petitioner, however, continued to occupy this period of original plot No. 109 and the Municipal Corporation, therefore, served on the petitioner on 16th June 1967 a notice under Section 54 read with Rule 27 of the Bombay Town Planning Rules, 1955, requiring the petitioner to hand over vacant possession of this portion of original plot No. 109 after removing the superstructure within seven days from the receipt of the notice. The petitioner thereupon filed the present petition challenging the validity of the final scheme in so far as it related to original plot No. 109.

2. The main ground of challenge advanced on behalf of the petitioner was that the variation made by the Town Planning Officer in the draft scheme by shifting the location of the public road in such a manner that a substantial part of original plot No. 109 was included in the public road was invalid and ineffective since it was in contravention of the mandatory requirement of the second proviso to Section 32 Sub-section (1) or at any rate in breach of Rule 21 Clauses (3) and (4) of the Bombay Town Planning Rules, 1955. To appreciate this ground of challenge, it is necessary to examine briefly the scheme of the new Act but we have already had occasion to do so in Special Civil Application No. 725 of 1962 decided on 7/8th July 1969 ('Kaushikprasad v. Ahmd. Muni. Corp. XI G.L.R. 993) and we do not, therefore, propose to rehearse what we have already stated in our judgment in that case. It is sufficient to point out that Clause (i) of Section 32 Sub-section (1) imposes a duty and by necessary implication confers power on the Town Planning Officer to define and demarcate the areas allotted to, or reserved, for a public purpose as also to reconstitute plots and in doing so, says Clause (a) of the first proviso, the Town Planning Officer may make variation from the draft scheme. The Town Planning Officer can, therefore, make variation in the size, shape or area of the reconstituted plots and also in the allotment of areas for a public purpose 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 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 shifting the location of the public road including a substantial part of original plot No. 109 in the public road was of a kind falling within Clause (b) of the first proviso. Reliance was placed only on the second imitation and the argument was that the variation was a substantial one and was, therefore, within the mischief of the second proviso. But this argument is clearly unsustainable for the second proviso on its plain terms, has no application to a case where opportunity to raise objections to the proposed variation has been denied to a tenant of the land. What the second proviso requires is that the variation shall not be made without hearing any objection which may be raised by the owners concerned and, therefore, to constitute compliance with the second proviso, the owner of the land affected by the proposed variation must be given an opportunity to raise objections but no such opportunity is contemplated to be given to the tenant of the land so far as the second proviso is concerned. Now it was not the case of the petitioner that notice of the proposed variation was not given to the fourth respondent who was the owner of original plot No. 109. The only limited complaint was that the petitioner was not given an opportunity of raising his objections against the proposed variation and this complaint clearly does not fall within the second proviso. The impugned variation made by the Town Planning Officer in the draft scheme cannot, therefore, be struck down as being in contravention of the second proviso to Section 32 Sub-section (1).

3. The petitioner is, however, on firmer ground when we turn to the next contention based on the contravention of Rule 21 Clauses (3) and (4). Before we go 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) read with Clause (a) of the first proviso '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 variations 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 the 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.' The contention of the petitioner was that as tenant of original plot No. 109, he was a 'person interested in any plot or in any particular comprised in the scheme' and was as such entitled to special notice under Rule 21 Clause (3); but it is not necessary to examine this contention since we are of the view that in any event the petitioner is entitled to succeed on the ground of infraction of Rule 21 Clause (4). That clause reads as follows:

(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.

If any person is affected by any particular of the scheme, the Town Planning Officer, Clause (4) of Rule 21 says, shall give him sufficient opportunity of stating his views and shall not give any decision till he has duly considered the representation, if any, made by such person. Now obviously allotment of a plot to the Municipal Corporation for a public road is a particular of the scheme as is evident from a plain reading of Section 25 Clause (e) and, therefore, it would, follow on a plain natural construction of the language of Rule 21 Clause (4) that if the petitioner was affected by the allotment of original plot No. 109 to the Municipal Corporation for a public road, the Town Planning Officer is bound to give to the petitioner sufficient opportunity of stating his views and was not entitled to give a decision making the variation until he had duly considered the representation, if any, made by the petitioner. The question which, therefore, arises is: Can it be said that the petitioner was a 'person' affected' by the allotment of original plot No. 109 for a public purpose within the meaning of Rule 21 Clause (4)?

4. The answer to this question is self evident. The petitioner was admittedly a tenant of a portion of original plot No. 109 together with the superstructure standing on it and if the whole of that portion or at any rate a substantial part of it was to be included in a public road so that on the coming into force of the final scheme it would vest in the Municipal Corporation and the petitioner would be deprived of his leasehold interest and would lose the land and the superstructure involving closure of business carried on by him in the superstructure, it is difficult to appreciate how it can be said that the petitioner was not affected by the proposed inclusion of original plot No. 109 in a public road. Whatever meaning we give to the word 'affected', the petitioner would in any view of the matter be clearly within it. It was impossible for the learned Advocate General on behalf of the respondents to resist this conclusion arising on a plain natural construction of the language used in Rule 21 Clause (4) but he made a valiant but futile attempt to escape from it by asking us to read the words 'persons affected by any particular of the scheme' not according to their plain natural meaning but in a narrow and constricted sense so as to be limited to owners of land. The learned Advocate General drew our attention to several provisions of the Act and pointed out that according to the scheme as embodied in these provisions, the procedure for making Town Planning Scheme took into account only owners of lands and other person interested in the lands had no place in the scheme relating to the making of the Town Planning Scheme. Reference was made to Section 2 Sub-section (5), Section 19 Sub-section (1), Section 25 Clause (a), Section 26 Sub-section (2) Clauses (d) and (e), Section 32 Sub-section (1) second proviso. Section 67 and Section 71 and it was contended that these sections dearly evinced the legislative intent that the owners of lands should be the only persons with whom the authorities should have to deal in making the Town Planing Scheme and that persons interested in the lands other than the owners should have no voice in the matter. If this was the basic policy underlying the scheme of the statute, the rule-making authority, said the learned Advocate General, could never have intended that besides owners, other persons interested in the lands should also be entitled to be heard before the Town Planning Officer gave his decisions in regard to the lands under Section 32. Moreover such an interpretation, contended the learned Advocate General, would make it impossible for the Town Planning Officer to complete the proceedings under Section 32 within reasonable time as it would involve giving of notices to hundreds and thousands of tenants and giving them an opportunity to be heard. This contention plausible though it may seem at first sight is without force. It is plainly contrary to the language of Rule 21 Clause (4) and seeks to introduce in that clause a limitation which cannot be read without doing serious violence to the language of that clause. We cannot assent to such an interpretation.

5. Even when we turn to the provisions of the Act, we find that the Legislature itself has drawn a distinction between 'persons affected' and 'owners of lands' and has scrupulously observed this distinction not only as a matter of terminology but also as a matter of substance. Section 26 Sub-section (3) provides for payment of compensation to the 'person affected' by a provision disentitling him to use a building for a purpose other than the purpose specified under Section 18 Sub-section (2) Clause (j). Section 27 says that if within one month from the date of publication of the draft scheme any person affected by such scheme communicates in writing to the local authority any objection relating to such scheme, the local authority shall consider such objections. The right to raise an objection to the draft scheme is not confined only to the owners of the land but also extends to any person affected by the draft scheme. Even a tenant like the petitioner can, therefore, raise an objection to the draft scheme if he is affected by any proposal in the draft scheme. Then again when a variation is sought to be made in the final scheme, the draft scheme is required to be published by the State Government under Sub-section (2) of Section 56 and Sub-section (5) of that section provides that within one month of the date of publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government. Here also the reference is to 'any person affected' and not to the 'owner of the land'. The Legislature has, therefore, clearly observed a distinction between 'person affected' and 'owner of the land'. This distinction is carried into the Rules by the rule making authority. Rule 13 Clause (1) refers to the meeting of owners of lands included in the Town Planning Scheme while Rule 14 Clause (2) uses the expression 'any person affected by such scheme'. So also in Rule 21 itself we find the same distinction made by the rule-making authority. Rule 21 Clause (1) refers to the owner of any property or right injuriously affected by the making of the town planning scheme but when we come to Rule 21 Clause (3), we notice a deliberate departure from the language used in Rule 13 Clause (1) and Rule 21 Clause (1). Rule 21 Clause (3) requires that special notice should be served upon the person interested in any plot or in any particular comprised in the scheme. So also in Rule 21 Clause (4) the rulemaking authority does not use the expression 'owner of land' but instead uses the expression 'all persons affected by any particular of the scheme.' Then again when we turn to Rule 21 Clause (9) we find that the Town Planning Officer is required to communicate forthwith the decisions taken by him in respect of each plot to the owner or person interested. Here a clear distinction is made by the rule-making authority between owner of the plot and person interested. Obviously 'person interested' must be other than the owner for otherwise the former words would be surplusage. It is evident from this provision that the rule-making authority properly understood the distinction between owner and person interested and did not loosely or indiscriminately use the words 'person interested' or 'person affected' in Rule 21 Clauses (3) and (4) intending to refer only to owner of the land. Moreover, if a person interested is not to have any place in the making of the Town Planning Scheme, it is difficult to see why the rule-making authority should have required that the decisions taken by the Town Planning Officer should be communicated to him. This clearly shows that the words 'persons interested,' and 'persons affected' are not used by the rule-making authority in Rule 21 Clauses (3) and (4) to denote owner of the land but are used in their plain natural sense to take in all persons, besides owners who are interested or affected by any particular of the scheme. The object of Rule 21 Clause (4) clearly is that all persons who are affected by any particular of the scheme must have an opportunity of stating their views and making their representation before a decision is taken by the Town Planning Officer affecting them. This provision is in line with Section 27 which permits any person affected by the draft scheme to communicate his objections relating to the draft scheme for consideration by the local authority and Section 55 Sub-section (5) which also provides that any person affected by a draft variation may communicate his objections to such variation to the State Government and merely carries 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. It is undoubtedly true, as pointed out by the learned Advocate General, that the consequence of this interpretation would be that the Town Planning Officer would be bound to give notices to hundreds and thousands of tenants for the purpose of giving them an opportunity to be heard; but we do not see any reason why the Town Planning Officer should not be required to do so when he takes action affecting the rights of citizens. If compliance with this salutary requirement is found by the rule-making authority to be cumbrous, it is always open to the rule-making authority to change the rule. But we have no doubt that the rule-making authority will not lightly delete this salutary rule and deprive persons affected by any particulars of the scheme of opportunity of stating their views and making their representations before any decision is taken by the Town Planning Officer affecting their rights.

6. We are, therefore, of the view that the impugned variation in the draft scheme was made by the Town Planning Officer in breach of the mandatory requirement of Rule 21 Clause (4) since no opportunity was given by him to the petitioner of stating his views and making his representations though the petitioner was clearly a person affected by the proposed variation and the decision of the Town Planning Officer making the impugned variation must, therefore be held to be null and void and if that be so, the final scheme in so far as it relates to original plot No. 109 must also be held to be invalid.

We, therefore, allow the petition and make the rule absolute by issuing a writ quashing and setting aside the decision of the Town Planning Officer making the imputed variation in the draft scheme as also the final scheme in so far as it relates to original plot No. 109. The first respondent will pay the cost of petition to the petitioner.


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