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Aryakumar Mahasabha and anr. Vs. Town Planning Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR543
AppellantAryakumar Mahasabha and anr.
RespondentTown Planning Officer and anr.
Cases Referred(see Padfield v. Minister of Agriculture
Excerpt:
.....against which the court must resolve the controversy in the instant case. as earlier stated, there is a specific allegation in the amended petition that the first respondent had altogether failed to take into consideration the provisions of section 32(1)(vii) and that he had not at all applied his mind to the question of grant of exemption. even at the hearing the final scheme has not been produced before us to show that the decision, if any, on the question of exemption was recorded and entered in the scheme as required by rule 21(6). in the light of the aforesaid circumstances, the conclusion is irresistible that the provisions of section 32(1)(vii) appear to have totally escaped the notice of the first respondent and that he has failed to perform his statutory duty and function in..........and the second petitioner is one of the trustees of the said trust. the first respondent is the town planning officer, baroda and the second respondent is baroda municipal corporation.2. the question which arises for determination in this petition is whether the first respondent has performed the duty cast upon him under section 32(1)(vii) of the bombay town planning act, 1954 (hereinafter referred to as 'the act') read with rule 21 of the bombay town planning rules, 1955 (hereinafter referred to as 'the rules') and, if so, whether the duty has been performed in accordance with law and within the framework of the statute which conferred the duty.3. a few facts require to be set out to appreciate the point. the petitioner-trust, which appears to run several institutions with a view to.....
Judgment:

P.D. Desai, J.

1. The first petitioner is a Public Trust registered under the Bombay Public Trusts Act, 1950 and the second petitioner is one of the trustees of the said Trust. The first respondent is the Town Planning Officer, Baroda and the second respondent is Baroda Municipal Corporation.

2. The question which arises for determination in this petition is whether the first respondent has performed the duty cast upon him under Section 32(1)(vii) of the Bombay Town Planning Act, 1954 (hereinafter referred to as 'the Act') read with Rule 21 of the Bombay Town Planning Rules, 1955 (hereinafter referred to as 'the Rules') and, if so, whether the duty has been performed in accordance with law and within the framework of the statute which conferred the duty.

3. A few facts require to be set out to appreciate the point. The petitioner-Trust, which appears to run several institutions with a view to dispensing education and knowledge and in order to instruct and enlighten women in various walks of life, owns original Section Nos. 767 and 768 in village Nagarwada, Taluka and District Baroda. The lands in question, which originally admeasured 55745 sq. metres, are governed by the Baroda Town Planning Scheme No. 9. Under the draft scheme, the land owned by the petitioner-Trust is given Final Plot No. 120 and upon its reconstitution it now admeasures 56565 sq. metres. After the draft of the said scheme was sanctioned by the State Government, the first respondent was appointed as the Town Planning Officer. As a result of his various decisions, the petitioner-Trust was awarded certain compensation and it was required to make certain contribution. Those decisions appear to have been reached by the first respondent and recorded and entered in the scheme on September 28, 1976. By a communication dated October 14, 1976, Annexure 'B', the first respondent communicated to the petitioner-Trust his various decisions taken in respect of its plot. It requires to be emphasised at this stage that the communication, Annexure 'B', mentions, inter alia the amount of compensation to which the petitioner-Trust became entitled as also the amount of contribution recoverable from the petitioner-Trust under various heads. The communication, however, does not on the face of it record and transmit to the petitioner-Trust the decision, if any, taken by the first respondent on the question of the determination of the determination of the amount of exemption, if any, from the payment of contribution under clause (vii) of Section 31(1). It is no longer in dispute, however, that no exemption from payment of the contribution was granted to the petitioner-Trust by the first respondent.

4. The petitioner-Trust felt aggrieved by some of the decisions of that first respondent and it, therefore, preferred an appeal to the District Judge under Section 34. In view of the provisions of Section 33, no appeal could have been preferred on the question of grant of exemption and that question was, therefore, not the subject-matter of the appeal. It appears that in the said appeal, a compromise was arrived at between all the concerned parties as a result of which the appeal was withdrawn on September 30, 1978. The compromise terms which are at Annexure 'A' show that the petitioner-Trust withdrew all its contentions in the appeal but reserved the right to agitate the question with regard to exemption under Section 32(i)(vii). A specific provision to that effect was made in para 1 of the compromise terms. In para 4 of the compromise terms it was, in terms, provided as follows:

According to the appellant, the appellant is a public trust for charitable purposes and therefore the appellant is entitled to get exemption under Section 32(vii) of the Town Planning Act. But no appeal can lie under Section 34 for orders regarding Section 32(vii). So the appellant reserves right to file appropriate proceeding for exemption and without prejudice to these rights, this compromise is entered. The respondents do not admit the right of the appellate to get exemption. So, without prejudice to the right of the parties this compromise is agreed upon.

Pursuant to the right reserved in its favour as aforesaid, the petitioner-Trust made an application to the first respondent on December 27, 1978 (Annexure 'C') stating that it was a public charitable trust for charitable and religious purposes and that having regard to its objects, it was required to be exempted from the payment of contribution. It appears that the aforesaid application was not attended to by the first respondent and that the petitioner, therefore, instituted this writ petition on April 19, 1979 for a writ, order or direction commanding the first respondent to decide its application, Annexure 'C'. Rule nisi was issued on the petition on April 20, 1979 and it was made returnable on May 4, 1979. Presumably, upon the service of the rule, the first respondent sent a communication dated June 2, 1979, Annexure 'D', to the petitioner-Trust stating, inter alia, that (1) notices were previously issued to the petitioner-Trust on the Town Planning Scheme in question coming into force, (2) taking into consideration the representations made by the petitioner-Trust, decisions were reached and duly published by the first respondent on September 28, 1976, (3) those decisions were also communicated to the petitioner-Trust and the communication in that behalf was duly received by the petitioner-Trust on October 25, 1976, (4) the petitioner-Trust had thereafter preferred an appeal before the Board of Appeal, and (5) under the circumstances, there was no scope for reviewing the decisions regarding the granting of exemption to the petitioner-Trust from the payment of contribution. Consequent upon the receipt of the aforesaid communication, Annexure 'D', the petitioner-Trust sought leave and was permitted to amend the writ petition and the petition has accordingly been amended seeking relief in the nature of appropriate writ, order or direction quashing and setting aside the order, Annexure 'D'.

5. In the petition as amended, the challenge which is levelled against Annexure 'D' is that the decision of the first respondent suffers from the vice of non-application of mind and that it is also vitiated for want of reasons in support of the decision. In terms it has been alleged that the first respondent failed to take into consideration the provisions of Section 32(1)(vii) before arriving at the decision and that, in any case, he failed to determine the matter in accordance with law. No affidavit-in-reply has been filed on behalf of the first respondent. The second respondent has filed an affidavit-in-rely which, however, does not appear to throw any light on this aspect of the matter.

6. The provisions of law, which have a bearing on the decision of the petition, may be first adverted to. Section 32(1), which prescribes duties of the Town Planning Officer, opens with the words 'In accordance with the prescribed procedure the Town Planning Officer shall...'. It is manifest therefore, that the several duties under Section 32(1) have to be performed by the Town Planning Officer in accordance with the prescribed procedure. One of the duties conferred upon the Town Planning Officer is to calculate the contribution to be levied on each plot included in the final scheme [see Section 32(1)(x)]. At the same time, however, it is also the duty of the Town Planning Officer to determine the amount of exemption, if any, from the payment of the contribution that may be granted in respect of plots exclusively occupied for the religious or charitable purposes [see Section 32(1)(vii)]. Under Section 33, except in matters arising out of Clauses (v), (vi), (viii), (ix), (x) and (xiii) of Section 32(1), every decision of the Town Planning Officer shall be final and conclusive and binding on all persons. Therefore, the decision of the Town Planning Officer with regard to the determination of the amount of exemption, if any, under Clause (vii) of Section 32(1) is attached with finality and has a binding effect on all persons including those affected by such decisions. As regards the Town Planning Officer's decision under Clause (x) of Section 32(1), however, Section 34 provides an appeal to the District Judge for decision by a Board of Appeal constituted under Section 35. As earlier stated, in performing the duties cast upon him under Section 32(1), the Town Planning Officer has to follow the prescribed procedure and that makes it necessary to refer to the Bombay Town Planning Rules, 1955.

7. Rule 21 deals with the procedure to be followed by the Town Planning Officer. We need not refer to all the provisions of Rule 21 but shall advert to only those which are relevant for the purpose of the decision of this case. Under Sub-rule (4), the Town Planning Officer is under a duty to give all persons affected by any particular of the scheme sufficient opportunity of stating their views and not to give any decision till he has duly considered their representations, if any. Rule 21(6) casts duty on the Town Planning Officer to record and enter in the scheme every decision given by him under various specified clauses of Section 32(1) and, accordingly, the decision given by him, inter alia, under Clause (vii) is required to be recorded and entered in the scheme. Under the same Sub-rule, it is further the duty of the Town Planning Officer to set out and record in the scheme the calculations and estimates required, inter alia, by Clause (x). Under Sub-rule (9), the Town Planning Officer is under a duty to publish the final scheme drawn up by him: (1) by a notification in the Official Gazette and (2) by means of an advertisement in the local newspapers announcing that the final scheme shall be open for the inspection of the public during office hours at his office. The Town Planning Officer is also under a duty to communicate forthwith the 'decisions' taken by him in respect of each plot to the owner or person interested by the issue of the requisite extract from the final scheme.

8. The aforesaid provision indubitably cast a duty upon the first respondent to decide whether the petitioner-Trust was entitled to exemption, if any, from the payment of contribution and, if so, to determine the amount of exemption and to record and enter into the scheme such decision and to communicate forthwith the said decision to the petitioner-Trust. That this is the mandatory duty of the first respondent is obvious not only from the language employed in the relevant statutory provisions but also having regard to the salutary object underlying the enactment. When such duty is cast upon the first respondent, he has to perform the same irrespective of whether the party interested calls upon him to do so. A specific application seeking exemption may be advisable but it is not an essential prerequisite of the performances of duty under Section 32(1)(vii). An application would only be reminder, for the performance of duty, but even in absence of such reminder, the first respondent was lawfully obliged to perform his duty. In the instant case, from the contents of Annexure 'D' it would appear that the question of exemption must have been raised on behalf of the petitioner-Trust before the first respondent even during the earlier stages of the proceedings. Even when the appeal preferred by the petitioner-Trust before the Board of Appeal was withdrawn, the question was specifically left open and pursuant to the withdrawal, an application, Annexure 'C was in terms made seeking exemption. The application appears to have been rejected on the short ground that the question of exemption having been already considered at the stage when the decisions were recorded on September 28, 1976, there was no occasion or scope for review of the decision. The question is whether the stand adopted on behalf of the first respondent is justified in law as well as on the facts and in the circumstances of the case.

9. Before we proceed to deal with this question, two principles which are well-settled need to be alluded to. It is settled law that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised (see Julius v. hoard Bishop of Oxford (1880) 5 Appeal Cases 214). In other words, if the conditions laid down for the exercise of discretion are satisfied, the authority has no discretion to refuse to exercise the discretion. The authority is under a statutory duty to exercise the discretion. If there is omission to exercise discretion, inter alia, on account of the failure on the part of the authority to genuinely address itself to the matter before it or due to misconception of the scope of its power under the statute, mandamus can issue directing such authority to re-hear and determine the matter afresh according to law. It is equally well-settled that where a statute conferring a discretion on a public authority to exercise or not to exercise a power did not expressly limit or define the extent of his discretion and did not require it to give reasons for declining to exercise the power, his discretion might nevertheless be limited to the extent that it must not be so used, whether by reason of misconstruction of the statute or for other reason, as to frustrate the objects of the statute which conferred it. Under such circumstances, though the public authority might have full and unfettered discretion, it is bound to exercise it lawfully namely, not to misdirect itself in law, nor to take into account irrelevant matters, nor to omit relevant matters from consideration. If the discretion is not exercised lawfully, even if no reasons are given in support of the decision, the Court would not be prevented, in proper cases, from reaching a conclusion that a prerogative writ should issue. (see Padfield v. Minister of Agriculture (1968) 1 All E.R. 694). These two well-settled principles provide the background against which the Court must resolve the controversy in the instant case.

10. The first question is whether the discretion conferred upon the first respondent in the matter of exemption from contribution under Section 32(1)(vii) was at all exercised in the present case. As earlier stated, the communication, Annexure 'D' recites that the question of exemption having been decided on September 28, 1976, there was no scope for review of such decision. Beyond making this bare assertion the communication gives no further details. It is not stated as to in what precise manner the question of exemption was considered and what were the factors which went into account in determining the question. No grounds in support of the decision, if any, not to grant exemption are cited and reproduced in the communication. The relevant portion of the decision dated September 28, 1976 which dealt with the question of exemption has not been annexed to the communication, nor is it stated that the decision of the first respondent on the question is duly recorded and entered in the scheme as required by Rule 21(6). It would thus appear that Annexure 'D' throws no light whatsoever on this aspect of the matter except containing a bare assertion. When one turns to Annexure 'B' where under the decisions of the first respondent in respect of the plot in question were communicated to the petitioner-Trust, one finds that it does not, on the face of it, show that the question of exemption was considered and decided. In fact, there is no communication whatever of the decision of the first respondent on the question of exemption in Annexure 'A'. If, in fact, the question of exemption had been decided, such decision would have been communicated to the petitioner-Trust as required by Rule 21(9). But this is not all. As earlier stated, there is a specific allegation in the amended petition that the first respondent had altogether failed to take into consideration the provisions of Section 32(1)(vii) and that he had not at all applied his mind to the question of grant of exemption. No affidavit-in-reply has been filed by the first respondent to controversy this allegation. Even at the hearing the final scheme has not been produced before us to show that the decision, if any, on the question of exemption was recorded and entered in the scheme as required by Rule 21(6). In the light of the aforesaid circumstances, the conclusion is irresistible that the provisions of Section 32(1)(vii) appear to have totally escaped the notice of the first respondent and that he has failed to perform his statutory duty and function in the matter of exemption which seems to have been specifically claimed on behalf of the petitioner-Trust. There appears to be an omission on the part of the first respondent altogether to exercise discretion on account of his failure to genuinely address himself to the matter. Under such circumstances, a writ must inevitably issue quashing Annexure 'D'-for it proceeds upon the erroneous assumption that the question of exemption was considered and decided against the petitioner-Trust on the previous occasion-and directing the first respondent to rehear and determine the matter afresh according to law and in light of the observations made in this judgment.

11. Even assuming, however, that in determining and demanding from the petitioner-Trust the quantified contribution the first respondent must be deemed to have considered the question of grant of exemption-this assumption should not be taken as signifying our approval to such a procedure, the decision so arrived at by implication must also be held to suffer from various vices. The scheme of the relevant provisions relating to the performance of duty by the first respondent unmistakably bring forth the requirement of setting out, recording and entering every decision arrived at by the first respondent in the final scheme and publishing the final scheme in the prescribed manner and communicating such decision to each owner or person interested. It must, therefore, be shown on the face of the final scheme and the communication, Annexure 'B' sent to the petitioner-Trust that the decision on the question of exemption was reached and as to what such decision was. These are mandatory requirements of law. They have indisputably not been complied with. As earlier pointed out, the final scheme or the relevant extract thereof has not been produced before us to show that any such thing was done. The communication, Annexure 'B', which is before us does not contain any such decision. The requirement with regard to the recording and setting out of such decision in the final scheme as also in the communication of the decision to the petitioner-Trust not only flows out of the relevant statutory provisions but also on account of the provision contained in Section 33 of the Act which makes the decision of the first respondent on the question of exemption final, conclusive and binding on all persons. The only remedy for the petitioner-Trust to question such decision, therefore, lies in invoking the writ jurisdiction of this Court. In order that the Court, in exercise of its writ jurisdiction, can satisfy itself that the discretion was not exercised by reason or misconstruction of the statute or for some other reasons so as to frustrate the objects of the statute, it is obvious that not only should such decision expressly find place in the final scheme as also in the communication of the decision to the petitioner-Trust but it should also record reasons. It was incumbent upon the first respondent to have recorded reasons also with a view to meeting the grounds raised in the representation made by the petitioner-Trust claiming exemption. Insistence upon giving of reasons in cases where substantial points arise ensures that the right of making representation is not an illusory or empty formality. Besides, the word 'decision' used in the relevant statutory provisions implies not merely the need to set out the final conclusion but also the reasons in support of that conclusion. Therefore, unless there was a reasoned decision recorded in the final scheme and in the communication sent to the petitioner-Trust, it would be legitimate to hold that no decision in accordance with law was arrived at all even if the question of exemption was considered and recorded by the first respondent.

12. Looked at from either point of view, there is no escape from the conclusion that in the instant case, there has really been no effective exercise of power or duty conferred upon the first respondent under Section 32(1)(vii) of the Act. The statutory power which was vested in the first respondent for the salutary object of granting exemption from payment of the contribution in respect of plots exclusively occupied for the religious or charitable purposes was not exercised at all, bearing in mind the relevant facts and circumstances of the case and the objects of the statute which conferred such discretion.

In the result, the writ petition succeeds and it is allowed. A writ will issue directing the first respondent to consider the question of grant of exemption from contribution under Section 32(1)(vii) of the Act in respect of final plot No. 120 of Baroda Town Planning Scheme No. 9 occupied by the petitioner-Trust in accordance with law and in light of the observations made in this judgment. The first respondent will determine the question after giving to the petitioner-Trust an opportunity of being heard which will include an opportunity to submit additional material in support of its plea for exemption. The decision on the question will be reached by the first respondent within a period of three months from the date of the receipt of the writ. Meanwhile, the first respondent will not forward the scheme to the State Government for its sanction nor will he enforce against the petitioner-trust the payment of contribution determined under the other provisions of Section 32(1). Rule is accordingly made absolute. The first respondent will pay the costs of this petition to the petitioner-Trust.


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