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Surat Parsi Panchayat, a Public Trust and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 1344 of 1974
Judge
Reported inAIR1981Guj136; (1981)0GLR269
ActsBombay Town Planning Act, 1955 - Sections 32(1), 34 66, and 66(1)
AppellantSurat Parsi Panchayat, a Public Trust and ors.
RespondentState of Gujarat and ors.
Appellant Advocate K.A. Mehta, Adv.
Respondent Advocate G.N. Desai, Govt. Pleader,; A.J. Patel, Asstt. Govt, Pleader,;
Excerpt:
- - if the argument raised by the learned government pleader was well founded, the legislature would has referred in section 32 (1) (ix), to sub-section (1) of section 66 excluding its proviso......nos. 5 to 45 are the lessees of the petitioner. the question of paying contribution under the town planning scheme arises in respect of final plots nos. 58, 46, 45, 52, 54, 50, 47, 56, 53, 44, 51, 57, 60, 61, 79, 74, 76, 96, 86, 87, 88, 89, 72, 158, 162, 164, 165 and 166. the town planning officer has ordered the lessees to bear 2/5th of the contribution payable in respect of the aforesaid lands and the lessor - the petitioner - to bear 3/5th of the contribution. now, this contention was raised before the board of appeal. the board of appeal has held that it has no jurisdiction to examine this part of the order of the town planning officer. the jurisdiction of the board is governed by section 34 of the act. in 1971, when the appeals were filed before the board of appeal, section 34.....
Judgment:

S.H. Seth, J.

1-23. x x x

24. We now turn to fourth and fifth contentions. The fourth contention relates to the apportionment of contribution between the petitioner on one hand and its lessees on the other hand. Respondents Nos. 5 to 45 are the lessees of the petitioner. The question of paying contribution under the town planning scheme arises in respect of Final Plots Nos. 58, 46, 45, 52, 54, 50, 47, 56, 53, 44, 51, 57, 60, 61, 79, 74, 76, 96, 86, 87, 88, 89, 72, 158, 162, 164, 165 and 166. The Town Planning Officer has ordered the lessees to bear 2/5th of the contribution payable in respect of the aforesaid lands and the lessor - the petitioner - to bear 3/5th of the contribution. Now, this contention was raised before the Board of Appeal. The Board of Appeal has held that it has no jurisdiction to examine this part of the order of the Town Planning Officer. The jurisdiction of the Board is governed by Section 34 of the Act. In 1971, when the appeals were filed before the Board of Appeal, Section 34 provided as follows :

'Any decision of the Town Planning Officer under clauses (v), (vi), (viii), (ix), (x) and (xiii) of sub-section (1) of Section 32 shall be forthwith communicated to the party concerned and any party aggrieved by any such decision may, within one month from the date of the communication of the decision present an appeal to the District Judge for decision of the appeal by a Board of Appeal constituted under Section 35: and on receipt of an appeal as aforesaid the Board of Appeal shall as soon as may be constituted as hereinafter provided and shall hear and decide the appeal.'

This section renders certain decisions of the Town Planning Officer appealable to the Board of Appeal. They are decisions which fall under clauses (v), (vi), (viii), (ix), (x) and (xiii) of sub-section (1) of Section 32.

25. Let us now turn to sub-section (l) of Section 32 Mrs. Mehta has argued that the question of apportionment falls under clause (ix) of sub-section (1) of Section 32. It reads as follows:

'In accordance with the prescribed procedure the Town Planning Officer shall ... calculate the proportion which the increment of the plots included in the final scheme shall be liable to contribution to the costs of the scheme in accordance with the provisions contained in Section 66.'

It has been argued by Mrs. Mehta that the expressions 'proportion' and 'contribution' read in light of the fact that clause (ix) refers to entire Section 66 necessarily embrace within their sweep the question of apportionment of contribution between a lessor and his lessee because, according to her, Section 66 to which reference has been made in its entirety specifically provides for such apportionment. On the other hand, the learned Government Pleader has argued that clause (ix) does not provide for determination of apportionment of contribution between a lessor and a lessee of a particular plot but it provides for determination of contribution Payable in uniform or different proportions by different plot-holders. In support of his argument, he has stressed the expression 'in which the increment of the plots included in the final scheme' used in clause (ix) of sub-section (1) of Section 32. If emphasis is laid on the expression 'increment of the plots', it is likely to lead to an inference that the expressions 'Proportion' and 'contribution' used in clause (ix) have a reference to contributions payable in respect of different plots and not contribution payable in respect of a particular plot by its lessor and lessee and by its mortgagor and mortgagee.

26. Now, in order to examine the rival arguments which have been raised in this behalf, it is necessary to turn to Section 66. Sub-section (1) of Section 66 provides as follows:

'The costs of the scheme shall be met wholly or in part by a contribution to be levied by the local authority on each plot included in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Town Planning Officer.'

This provision indeed has reference to contribution payable in respect of each plot included in the final scheme which the Town Planning Officer is required to determine. However, there is a proviso to sub-section (1) of Section 66 and it contains four clauses. Clause (ii) in the proviso to sub-section (1) reads as follows:

'Provided that..... here a plot is subject to a mortgage with possession or to a lease the Town Planning Officer shall determine in what proportion the mortgagee or lessee on the one hand and the mortgagor or lessor an the other hand shall pay such contribution.'

It is clear, therefore, that under Section 66 the Town Planning Officer is under an obligation to decide not only what contribution is payable in respect of each plot included in, the town planning scheme but is also under an obligation to decide in what proportion contribution shall be payable in respect of a particular plot by its lessor and lessee or by its mortgagor or mortgage. We have no doubt in our minds that Section 66 casts upon the Town Planning Officer both these obligation if we now turn to clause (ix) of sub-section (1) of Section 32 again and examine it in this light, we must necessarily hold that clause (ix) contemplates determination of contribution payable in respect of each plot and also payable in respect of a particular plot by its lessor and lessee or by its mortgagor and mortgagee. The comprehensive reference to Section 66 made in clause (ix) of sub-section (1) of Section 32 emboldens us to take this view. If the argument raised by the learned Government Pleader was well founded, the Legislature would has referred in Section 32 (1) (ix), to sub-section (1) of Section 66 excluding its proviso. The Legislature has not done it. We may in this behalf refer to clause (iii) of sub-section (1) of Section 32 under which reference has been made only to clause (f) of sub-section (1) of Section 64. Therefore, when we read clause (ix) and clause (iii) of sub-section (1) of Section 32 in juxtaposition, it is clear that the Legislature has referred to a specific provision where it wanted to do so and made a general reference where it wanted to Provide otherwise. Therefore, it is clear that when it is read in this context, we find that comprehensive reference to Section 66 does not mean reference only to the principal part of sub-section (1) of Section 66 but it means reference to the whole of it including its proviso. Therefore, to read the expression 'the increment of the plots included in the final scheme' as referring only to plots and not to the lessor and lessee or mortgagor arid mortgagee of a particular plot is to take a lop-sided view of the matter. Indeed, the learned Government Pleader tried to support his contention by having resort to clause (xiv) of subsection (1) of Section 32. Clause (xiv) can never support the contention raised by him. He himself realized it in course of his arguments and did not Dress the Question further. In order to be fair to his argument, we reproduce below clause (xiv) of sub-section (1) of S. 32.

'In accordance with the prescribed procedure the Town Planning Officer shall ...... draw in the prescribed form the final scheme in accordance with the draft scheme.'

This clause has nothing whatsoever to do with the question of apportionment of contribution between a lessor and his lessee. In our opinion, therefore, the Board of Appeal was in error in holding that the question of apportionment of contribution between a lessor and his lessee did not fall under clause (ix) of sub-section (1) of Section 32 and that, therefore, it had no jurisdiction under Section 34 to hear appeal against it.

27. In our opinion, the Board of Appeal has jurisdiction to examine this question. Therefore, the impugned order of the Board of Appeal in so far as it relates to this aspect in respect of several final plots to which we have referred must be set aside and quashed. The fourth contention raised by Mrs. Mehta, therefore, is upheld.

28 to 34. x x x x x x

35. Petition partly allowed.


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