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The Ahmedabad Municipal Corporation Vs. Sheth Manilal Jeshingbhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR855
AppellantThe Ahmedabad Municipal Corporation
RespondentSheth Manilal Jeshingbhai and ors.
Excerpt:
- - 2500 and odd estimated in the draft scheme the increase being due mainly to the variations made in the draft scheme and also it would seem due to the rise in prices and wages which as is well known occurred during this long period. the board however, observed that though the cost of these items could be included in the cost of the scheme it was permissible to it while considering the fail percentage of contribution to take into consideration the fact of these items being obligatory duties and the fact of several plot holders having paid taxes for a very long time without their having been given the corresponding amenities. october 1 1941 as provided by section 65 the board took the values as of the date when they visited the sites and therefore the decision as to the values was.....j.m. shelat, j.1. this and the other 355 applications ate filed by the municipal corporation of ahmedabad against the various holders of plots situate at paldi within the area covered by what is known as the paldi town planning scheme no. vi. these applications are under article227 of the constitution and pray for setting aside the orders passed by the board of appeal appointed under section 33 of the bombay town planning act 1954 whereby the board reduced (1) the incremental value of the plots from nine to eleven per cent and (2) the contribution levied on each of the plots towards the cost of the scheme as determined by the town planning officer from 50% to 33%.the questions involved in all these applications are identical and therefore it is expedient to dispose of all these.....
Judgment:

J.M. Shelat, J.

1. This and the other 355 applications ate filed by the Municipal Corporation of Ahmedabad against the various holders of plots situate at Paldi within the area covered by what is known as the Paldi Town Planning Scheme No. VI. These applications are under Article227 of the Constitution and pray for setting aside the orders passed by the Board of Appeal appointed under Section 33 of the Bombay Town Planning Act 1954 whereby the Board reduced (1) the incremental value of the plots from nine to eleven per cent and (2) the contribution levied on each of the plots towards the cost of the scheme as determined by the Town Planning Officer from 50% to 33%.

The questions involved in all these applications are identical and therefore it is expedient to dispose of all these applications by a common judgment

Prior to April 1 1957 when the Bombay Town Planning Act 1954 came into force the Bombay Town Planning Act 1915 applied and the Town Planning Schemes were framed under and governed by that Act. Accordingly the Borough Municipality of Ahmedabad as it then was prior to the enactment of the Bombay Provincial Municipal Corporations Act. LIX of 1949 made its declaration of intention to frame a scheme relating to the area in question as early as October 1 1941 under Section 9(1) of the Bombay Town Planning Act 1915 By a Resolution No. 4730/33 dated March 31 1942 the Government of Bombay gave its sanction to the making of the scheme as required by Section 916) of the 1915 Act. A draft scheme was accordingly prepared and the government of Bombay gave its sanction to that scheme under Section 14(2) of the Act on September 25 1944 The scheme so prepared was a relatively modest scheme involving considerably lesser cost for the reason that it did not include such items as water supply drainage and lighting.

2. Between 1944 and 1953 practically no work was done though the government appointed during these years as many as three officers as Arbitrators under Section 29 of the 1915 Act. Ultimately the Government appointed in 1953 one R.M. Parikh an Assistant Consulting Engineer to the Government as the Arbitrator who gave his decision on March 27 1959.

The decision was thus given nearly eighteen years after the declaration of intention to make a scheme. In the meantime it is a fact of some notoriety that there was rapid development of the City and the large areas surrounding it The cost of the scheme as finally fixed by the Town Planning Officer was estimated at Rs. 52 89 883 as compared to Rs. 2500 and odd estimated in the draft scheme the increase being due mainly to the variations made in the draft scheme and also it would seem due to the rise in prices and wages which as is well known occurred during this long period. The Town Planning Officer estimated the incremental value of these plots at Rs. 34 54 589 fixed the rate of contribution towards the cost of the scheme at 50 per cent of the incremental value i.e. Rs. 17 27 294.

The Act of 1915 was repealed and was substituted by the new Act of 1954 which was brought into operation from April 1 1957 But the work commenced by the Arbitrator under the Act of 1915 was not really affected by the substitution of the new Act. Though Sub-section (1) of Section 90 of the new Act repealed the old Act Sub-section (2) of that section contained provisions which saved certain things done previously under Act I of 1915 Thus notwithstanding the repeal of Act I of 1915 certain matters and things arising or done under the old Act such as the appointment of an Arbitrator the proceedings taken by and pending before him etc. were saved in so far as they were not inconsistent with the provisions of the new Act and were continued to be in force and the provisions of the new Act were to have effect in relation to these matters and things. There is no dispute that on and after April 1 1957 it was the new Act which applied to the instant scheme and the proceedings relating thereto.

In order to appreciate the contentions advanced before us it is necessary to briefly set out some of the provisions of the Act referred to us by the learned advocates for the parties in the course of the hearing.

3. Under the new Act the Officer appointed as the Arbitrator under Section 29 of Act 1 of 1915 became the Town Planning Officer. Under Section 31 the State government is required to appoint a Town Planning Officer within one month from the date on which the sanction to the draft scheme is published in the Official Gazette. Under Sub-section (1) of Section 32 such a Town Planning Officer has to carry out the several duties provided therein. Amongst the duties set out in the section the following duties are relevant for the purposes of these applications namely:

(v) estimate the portion of the sums payable as compensation on each plot used allotted or reserved for a public purpose or purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public which shall be included in the costs of the scheme;

(vi) calculate the contribution to be levied on each plot used allotted or reserved for a public purpose or purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public;

(vii) estimate the increment to accrue in respect of each plot included in the final scheme in accordance with the provisions contained in see 65;

(viii) calculate the proportion in 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;

(ix) calculate the contribution to be levied on each plot included in the final scheme

(xiii) estimate in reference to claims made before him after the notice given by him in the prescribed manner the compensation to be paid to the owner of any property or right injuriously affected by the making of a town-planning scheme in accordance with the provisions contained in Section 69.

Having done the things entrusted to him under Sub-section (1) of Section 32 the Town Planning Officer has to draw up in the form prescribed the final scheme in accordance with the draft scheme. Under the provisos to Section 32(1) power however has been given to the Town Planning Officer to make variations in the draft scheme in accordance with the conditions and the procedure laid down therein.

In accordance with these provisos the Town Planning Officer made certain variations in the draft scheme after giving notices in April 1958 to the several plot-holders within the area in question and after hearing them. As the final scheme was not drawn up within the time prescribed by Sub-section (3) of Section 32 the State government under powers reserved to it under the proviso to Sub-section (3) extended the period of the Town Planning Officer by two years and a we have said the scheme was finally made on March 27, 1959.

Three important duties relevant for our purposes entrusted to the Town Planning Officer under Sub-section (1) of Section 32 are under Clause (viii) viz. to estimate the increment to accrue in respect of each plot included in the final scheme in accordance with the provisions contained in Section 65 under Clause (ix) to calculate the proportion in which the increment of the plots included in the final scheme should be liable to contribution to the costs of the scheme in accordance with the provisions contained in Section 66 and under Clause (x) to calculate the contribution to be levied on each plot included in the final scheme.

4. Section 18 gives power to the local authority to provide in its town planning scheme things enumerated therein which it may be observed includes items (f), (g) and (h) i.e. drainage lighting and water supply which are obligatory duties on a Municipal Corporation such as that of Ahmedabad City under Section 63 of the Bombay Provincial Municipal Corporations Act 1949 Though these three items are of an obligatory nature it is permissible under Section 18 of the Town Planning Act to include them in the scheme as also to include their costs in the costs of such a scheme. Reading thus Section 63 of the Municipal Corporations Act and Section 18 of the town Planning Act 1954 it is clear that the Municipal Corporation by having the power to include these obligatory items in the scheme has also the power to include their costs in the costs of the schema under Section 18 instead of providing the costs in their usual budgets under the provisions of the Municipal Corporations Act and meeting such costs from its general revenues. Nevertheless the two considerations are and must be kept quite apart namely (1) the power to include these costs in the costs of the scheme under Section 18 of the Town Planning Act and (2) the question as to the proportion of such costs to be levied or apportioned on the plot-holders which costs are incurred by the Municipal Corporation in the discharge of its duties made obligatory under Section 63 of the Bombay Provincial Municipal Corporations Act towards the residents residing in the jurisdictional area of the Corporation and paying to the Corporation the general and other taxes.

Chapter VIII deals with the finance involved in the town planning scheme. Section 64 in that Chapter deals with the costs of a scheme which include (1) all sums payable by the local authority under the provisions of the Act which are not specifically excluded from the costs of the scheme; (2) all sums spent or estimated to be spent by the local authority in the making and in the execution of a scheme; (3) all sums payable as compensation for land reserved or designated for any public purpose or purpose of the local authority which is solely beneficial to the owners or residents within the area of the scheme; (4) such portion of the sun s payable as compensation for land reserved or designated for any public purpose or purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public as is attributable to the benefit accruing to the owners or residents within the area of the scheme from such reservation or designation; (5) all legal expenses; and (6) any amount by which the total of the values of the original plots exceeds the total of the values of the plots included in the final scheme each of such plots being estimated at its market value at the date of the declaration of intention to make a scheme with all the buildings and works thereon at that date and without references to improvements contemplated in the scheme other than improvements due to the alteration of its boundaries. Sub-section (2) provides that if in any case the total of the values of the plots included in the final scheme exceeds the total of the values of the original plots each of such plots being estimated in the manner provided in Clause (f) of Sub-section (1) then the amount of such excess shall be deducted in arriving at the cost of the scheme as defined in Sub-section (1). Section 65 provides for the calculation of increment Under that section the increments shall be deemed to be the amount by which at the date of the declaration of intention to make a scheme the market value of a plot included in the final scheme estimated on the assumption that the scheme has been completed would exceed at the same date the market value of the same plot estimated without reference to improvements contemplated in the scheme. In other words the increment would be the difference between the market value of the plot at the date of the declaration of intention namely October 1, 1941 without reference to the improvements contemplated in the scheme and the market value of that plot at the said date i.e. the date of declaration estimated on the assumption that the scheme with the improvements contemplated therein has been completed on that date. Section 66 provides for the contribution towards the costs of the scheme. Sub-sec.(1) provides that 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. There are four provisos to Sub-section (1) of Section66. The first proviso lays down that no such contribution shall exceed half the increment estimated by the Town Planning Officer to accrue in respect of such plot. The second proviso provides that where 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 the lessee on the one hand and the mortgagor or the lessor on the other hand shall pay such contribution. The third proviso provides that no such contribution shall be levied on a plot used allotted or reserved for a public purpose or purpose of the local authority which is solely for the benefit of owners or residents within the area of the scheme, the fourth proviso lays down that the contribution levied on a plot used allotted or reserved for a public purpose or purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public shall be calculated in proportion to the benefit estimated to accrue to the general public from such use allotment or reservation. Under Section 33 of the Act the decision of the Town Planning Officer has been made final conclusive and binding on all persons except in matters set out in Clauses (v), (vi), (viii), (ix), (x) and (xiii) of Section 32(1). Under Section 34 a right of appeal is given to any party aggrieved by any such decision in matters arising under the aforesaid clauses. Section 35 provides for the constitution of the Board of Appeal and Section 40(1) provides for the powers of the Board of Appeal. Under Sub-section (1) of Section 40 the Board of Appeal has the power either to direct the Town Planning Officer to reconsider his proposals or accept modify vary or reject such proposals and to decide all matters arising out of the aforesaid Clauses (v), (vi), (viii), (ix), (x) and (xiii) of Section 32(1). The decision of the Board of Appeal has been made final conclusive and binding on all persons under Sub-section (2) of Section 40.

5. Several holders of plots situate within the area covered by the scheme filed appeals against the award and these appeals were disposed of by the Board of Appeal by a common judgment dated April 20, 1960.

Various questions were raised before the Board of Appeal by the several appellants both on grounds of law and fact. But most of the points raised by them were rejected. Amongst the questions raised by the appellants were three questions which are relevant for our purposes. The first question was that the scheme included items such as water-supply drainage and lighting that these were obligatory duties of the Corporation under Section 63 of the Bombay Provincial Municipal Corporations Act and that therefore the cost of these items would not constitute a fair charge on the scheme as they were items which the Corporation was bound to perform even without the scheme and therefore should not have been included in the cost of the scheme. This ground was however rejected by the Board of Appeal and in our view rightly because under Section 18 of the Town Planning Act of 1954 it is permissible to include the cost of these items in the scheme. The Board however, observed that though the cost of these items could be included in the cost of the scheme it was permissible to it while considering the fail percentage of contribution to take into consideration the fact of these items being obligatory duties and the fact of several plot holders having paid taxes for a very long time without their having been given the corresponding amenities. The second question raised was that the decision of the Town Planning Officer that plot holders should pay the minimum allowable under the Act viz 50 percent of the incremental value was incorrect and that the contribution should be at the rate of 25 percent. The Board of Appeal held that on the facts and circumstances of the case the proper contribution should be at the rate of 33 percent instead of 50 per cent as decided by the Town Planning Officer. The third question was with regard to the incremental value fixed by the Town Planning Officer. The Board reduced the incremental value fixed by the Town Planning Officer by nine to eleven percent. This decision of the Board of Appeal is challenged in these applications on the ground that the reduction in the incremental values and the quantum of contribution as assessed and fixed by the Board of Appeal is invalid and beyond the competence of the Board of Appeal.

As pointed out above under Sub-section (2) of Section 40 of the Act the decision of the Board of Appeal in matters where there is a right of appeal namely matters arising under Clauses (v), (vi), (viii), (ix), (x) and (xiii) of Section 32(1) is final conclusive and binding on all parties i.e. the plot-holders and the Corporation. There is no challenge in these applications to the validity of the Bombay Town Planning Act of 1954. Therefore the petitioner Corporation can challenge the decision of the Board of Appeal only on those permissible grounds in applications under Article 227 of the Constitution.

The attack on the decision of the Board of Appeal in these applications is mainly two-fold first against the reduction in the incremental values by nine to eleven per cent and secondly against the reduction in the percentage of contribution from 50 per cent to 33 1/3 per cent.

6. It was contended on behalf of the petitioner-Corporation that the Board in deciding the increment and in reducing it by nine to eleven per cent did so in breach of the principle laid down by the legislature in Section 65 of the Act. The argument in other words was that instead of taking the two values as of the date of the declaration of intention to make the scheme i.e. October 1 1941 as provided by Section 65 the Board took the values as of the date when they visited the sites and therefore the decision as to the values was vitiated and was bad in law. Mr. Shah relied on certain observations made by the Board to the effect that the members of the Board had visited the different plots in the presence of the parties their pleaders and the Officers of the local authority that they found that certain plots were like pits and required to be filled in before they could be used that they had taken a round of all the plots and seen the situation of each of them that they had taken into account the fact that some lands were low-lying areas that some of them were developed before the date of the scheme that some of them were at great distance from the public road and that some of them were quite near the river and were on a lower level than the other plots. These observations Mr. Shah argued showed that the Board took into consideration the position of the plots as they existed at the date of the decision of the Board i.e. in 1960 and not as on October 1 1941 and that such determination was in breach of and in fact contrary to the principle laid down in Section 65 of the Act. Mr. Shah argued and in our view rightly that for the purpose of determining the developed values the Town Planning Officer as also the Board have to project their minds to the position of the plots with and without the benefits accruing under the scheme as on October 1 1941 But the Board in our view has done exactly what Mr. Shah submits. In paragraph 22 of its judgment the Board has observed

We might repeat that in fixing the development and incremental values all these facts have been taken into account by the Arbitrator (Town Planning Officer). We have found that on the whole his decision is right except that he has fixed the final values at a somewhat higher rate in all cases.

In paragraph 23 the Board observed

We have taken into consideration all the factors mentioned above and fixed the development values and increments for each plot. We have got the figures of contribution worked out according to our decisions.

7. These observations clearly show that the Board of appeal took into consideration all the factors as they existed at the date of the declaration of the intention to make the scheme and which identical factor had been taken into consideration by the Town Planning Officer. They also show that the Board was aware of the principle laid down in Section 65 of the Act and was also conscious that under that section it was the position as to the plots which existed in October 1941 which bad to be taken into consideration for the fixation of the developed and incremental value of each of the plots.

Besides it is plain that by reason of Section 12 of the Act no development in any of these plots could have taken place or proceeded with except with the permission of the authorities concerned and therefore for all practical purposes the position of these plots had remained the same from October 1941 to the date when the members of the Board visited these plots. As we have said in paragraph 23 of the judgment the Board makes it clear that it took into consideration the very same factors in respect of each of these plots which the Town Planning Officer had done while arriving at his assessment of the increments.

8. While arriving at the incremental values the Board like the Town Planning Officer had to consider the position of each plot as it existed in October 1941 with all its natural advantages and disadvantages its relative position with reference to the projects and developments proposed in the scheme such as roads public centres etc. and decide its value first without the benefits under the scheme and secondly with the benefits under the scheme on the assumption as if the scheme had been completed on October 1, 1941. The Board then reduced the incremental values after having worked them out in this fashion as provided by Section 65 of the Act. This method having been followed if the Board came to the conclusion that the incremental value arrived at by the Town Planning Officer was high and that it should on its calculations be reduced by nine to eleven percent it would not be open to Mr. Shah to contend that such a conclusion is not warranted by the Act or that we should interfere with or set it aside. The Board has the power to consider the values fixed bye the Town Planning Officer and if necessary to vary or alter or even reject them and its decision is final under Sub-section (2) of Section 40 so long as the Board has decided upon, the incremental values in accordance with the provisions of the Act and within its jurisdiction. In our view the contention raised by Mr. Shah on behalf of the Corporation in regard to the Boards decision as to the incremental values cannot be sustained.

The more substantial contention urged on behalf of the petitioner Corporation was the one regarding the reduction by the Board in the percentage of contribution from 50 percent to 33 1/2 percent. The contention was that the Board of Appeal has at any rate no power to reduce the rate of contribution from 50 percent where the costs of the scheme are higher than the contribution at the rate of 50 percent. Under Clause (ix) of Section 32(1) the Town Planning Officer has to calculate the proportion in which the increment of the plots included in the final scheme shall be liable to contribution to the cost of the scheme and that he has to do in accordance with the provisions contained in Section 66. Section 66(1) provides a rule for meeting the cost of the scheme and that is followed by four provisos. What Sub-section (1) of Section 66 really does is to lay down the method of meeting the cost of the scheme that is to say it provides the rule that the cost of the scheme shall be met either 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. Thus it is for the Town Planning Officer subject to the decision of the Board of Appeal to decide in a given case in what proportion the cost of the scheme should be met from contribution. This rule as to the method of meeting the cost of the scheme is followed by provisos of which we are really concerned here with the first of them. That proviso lays down that though the cost is to be met either wholly or in part from contribution the contribution to be levied should in no case exceed half the increment estimated to accrue in respect of each plot. The first proviso thus provides the maximum to be charged from the increment. This proviso like all other provisos is by way of something carved out from the rule laid down in Sub-section (1) of Section 66 and therefore is by way of a qualification. That qualification is that though the costs arc to be met from the increment the contribution from a holder of a plot should not exceed in any event 50 percent of its increment.

9. But the contention of Mr. Shah was that the Legislature has used the word calculate both in Clause (ix) of Sub-section (1) of Section 32 and in Section 66(1) as against the words estimate and determine used in other clauses of Section 32(1). According to this contention the word calculate means a mere arithmetical calculation and therefore neither the Town Planning Officer nor the Board has the authority to levy a contribution of less than 50 percent whether the costs of the scheme are to be met wholly or in part from the incremental values. It was argued that the principle in Section 66(1) was that if the costs were less than 50 percent of the increment the whole costs would be met from the plot-holders and no burden would fall upon the local authority. If the costs were more than 50 percent of the increment the balance would have to be met from the general revenues of the local authority. This argument on the construction was sought to be supported by the contention that since the scheme was intended to benefit the plot-holders within the area of the scheme it would be Inequitable for the local authority to meet the costs from the general revenues as that would be throwing the burden of the scheme upon the public in general and such a thing could not possibly have been contemplated by the Legislature.

10. This contention in our view cannot be accepted and its incorrectness can easily be demonstrated by an illustration. A scheme may provide certain projects which when completed might be beneficial partly to the residents within the area of the scheme and partly to the general public. In such a case it cannot be said that it would be inequitable to throw at least a partial burden on the general public by partially meeting the costs of the scheme from the general revenues of the local authority Such a contingency is in fact contemplated by proviso (4) to Sub-section (1) of Section66 and Clause (vi) of sub Section(1) of Section32. Under Clause (vi) of Section 32(1) the Town Planning Officer has to calculate the contribution to be levied on each plot used allotted or reserved for a public purpose or a purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public. Similarly under proviso (4) to Section 66(1) the contribution levied on a plot used allotted or reserved for a public purpose or a purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public is to be calculated in proportion to the benefit estimated to accrue to the general public from such use allotment or reservation. Proviso (4) to Section 66(1) thus provides for the allocation of contribution calculated according to the extent of benefit to the general public as a result of a plot proposed to be used allotted or reserved for a public purpose or a purpose of the local authority. This part of the contention of Mr. Shah therefore cannot be accepted.

11. It was then argued that the deliberate use of the word calculate in Clause (ix) of Section32(1) involves a mere process of arithmetical calculation and therefore neither the Town Planning Officer nor the Board has been left any discretion. Consequently if the Town Planning Officer has provided for a 50 percent contribution the Board is not competent to interfere with such a decision. This construction suggested by Mr. Shah also cannot be accepted for several reasons.

It will noticed that the word calculate used in Sub-section (1) of Section 32 has not been given any technical meaning either in that subsection or anywhere else in the statute and therefore we have to adopt its ordinary dictionary meaning. To calculate means to commute and it also means amongst other things to furnish an estimate. It is true that Section 32 uses at different places different words. But as is well-known a legislature often expresses itself in diverse ways and therefore too much stress cannot be laid on the fact that it has used the word estimate at one place the word determine at other place and the word calculate at a third place in Sub-section (1) of Section 32. The argument of Mr. Shah in our view is met with conclusively by the use of the word calculate in Clause (vi) of Sub-section (1) of Section 32. The duty of the Town Planning Officer thereunder is to calculate the contribution to be levied on each plot used allotted or reserved for a public purpose or a purpose of the local authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public. And under proviso (4) of Section 66(1) the Officer has to calculate such contribution in the light of the benefit estimated to accrue to the general public. In arriving at the contribution to be levied upon the plotholders under the scheme the Town Planning Officer has under these provisions to have resort to a process of a hypothetical estimate and cannot decide the contribution by a mere arithmetical calculation based on any tangible or concrete data before him It is therefore not a case of mere arithmetical calculation but an elaborate process of computation which would include making estimates and determinations on his part. Therefore if the word calculate used in Clause (vi) of Section 32(1) must mean something more than the restricted meaning which Mr. Shah would attach to that word the same word used in Clause (ix) of that very sub-section must be given its full and not a restricted sense.

Section 65 carries a marginal note namely Calculation of increment. It is true that a marginal note cannot be used to qualify or govern the contents of a section. But such a marginal note can be considered in arriving at a conclusion as to the legislative intention manifested by means of such a note If one looks to the contents of Section 65 it is obvious that the increment that is to be arrived at thereunder is not and cannot be by a mere arithmetical calculation but must involve processes of estimates on the basis of certain assumptions. This clause thus shows that the word calculate does not carry merely the restricted meaning which is sought to be attached to it.

12. Under Section 40(1) the Board of Appeal has been conferred wide powers and these powers include the power to reconsider the proposals of the Town Planning Officer or accept modify vary or reject them and to decide all matters arising out of the clauses set out therein including matters arising from Clause (ix) of Section 32(1). If the construction placed by Mr. Shah were to be right and the Town Planning Officer and the Board have no discretion except to levy a 50 per cent contribution one may legitimately ask where was the necessity to give such an appellate power to the Board. The very fact that such wide powers are conferred upon the Board is an indication which negatives the construction sought to be placed by Mr. Shah. How would the Board of Appeal decide a matter arising under Clause (ix) of Section 32(1) by modifying or varying a proposal of the Town Planning Officer if the Board has to accept the contribution at the rate of 50 per cent levied in the decision of the Town Planning Officer? There is in fact nothing either in Section 32(1) or Section 66 of the Act indicating that the Board has no jurisdiction to interfere with or modify the rate of contribution where it is fixed at 50 per cent by the Town Planning Officer.

13. As we have said Sub-section (1) of Section 66 lays down the method of meeting the cost of the scheme. Under that sub-section such costs may be met from increments either wholly or in part. If the Town Planning Officer decides to meet the cost in part from the contributions there is no limitation except proviso (1) to his discretion. The only qualification to his power is that the proportion of contribution is not to exceed 50 per cent. But there is nothing in Sub-section (1) which lays down that the contribution cannot be less than 50 per cent though it cannot be in any event more than 50 per cent. We also see nothing in Sub-section (1) of Section 66 which provides as was argued by Mr. Shah that where the costs are more than 50 per cent of the increment the Town Planning Officer must charge contribution at the rate of 50 per cent and that if he does so the Board cannot vary it even if there are according to it just and good grounds to do so. Section 66( 1) leaves the power to meet the cost of the scheme either wholly or in part and to determine the rate of contribution to the Town Planning Officer and the Board of Appeal after taking into contribution the facts and circumstances in each case. In our view the Board of Appeal had thus the power to consider the decision of the Town Planning Officer and decide the question of the percentage of contribution and in the exercise of that power to vary the proposal or the decision of the Town Planning Officer in that regard if on the materials before it the Board thought it necessary and proper to do so.

14. Reliance was however placed by Mr. Shah on a decision of the Tribunal presided over by Mr. Justice N.J. Wadia under Act I of 1915 in the case of Bombay Town Planning Scheme No. 1 delivered on November 3 1954 where Mr. Justice N.J. Wadia observed that he was inclined to accept the construction of the word calculate in its limited sense as suggested by Mr. Shah. That construction was also adopted later on by the Board of Appeal in the case of Bombay Town Planning Scheme No. III decided on January 30 1960 These precedents cited by Mr. Shah however do not help us because Mr. Justice N.J. Wadia has expressly stated that he was not called upon to construe the word calculate and besides the decision does not contain any reasons as to why he was inclined to accept the aforesaid construction. We also notice that the learned Judge has not taken into consideration several other relevant clauses in the Act of 1915 while taking the view which he did. As against that view the Tribunal presided over by Rajadhyaksha J. in the case of Ellis Bridge Scheme No. III of Ahmedabad decided on June 18, 1939 adopted the construction which we have indicated to be the right one. In our view the view taken by Rajadhyaksha J. in that decision is more consistent with the scheme of the Act than the view which Mr. Justice N.J. Wadia was inclined to take. We also find from the observations made by the Board of Appeal in the instant case that in several other cases referred to by the Board of Appeal the contribution levied was in fact less than 40 per cent and it is not in dispute that the Corporation did not at any time challenge the validity of those decisions nor the power of the Board to fix the contribution at less than 50 per cent.

In reducing the contribution from 50 per cent to 33 per cent the Board of Appeal took into consideration three factors; (1) delay of nearly eighteen years in making the final scheme; (2) the fact of items of water supply drainage and lighting which are obligatory duties of the Corporation having been included in the scheme; and (3) the fact of several plotholders in this area having been paying so far taxes without obtaining in return the amenities. The question is whether these considerations or any of them were beyond the jurisdiction of the Board of Appeal or were so extraneous to the Act that a consideration thereof might be viewed as beyond the competence or the jurisdiction of the Board.

Strictly speaking delay by itself would not perhaps be a factor which Would justify the reduction in the contribution. But the Board appears to be of the view that owing to the rising prices during this long period both of materials and labour the costs of the scheme were bound to and did in fact inflate and therefore treated this ground as a valid and just ground for not throwing the burden of contribution to the extent that the Town Planning Officer did. It is not unreasonable to think that if the scheme had been framed earlier i.e within a reasonable time after October 1 1941 its estimated cost would perhaps have been much less than when the Town Planning Officer finalised it sometime in 1959. In that event it is possible that it would not perhaps have been thought necessary taking all the facts and circumstances of the case into consideration to fix the maximum percentage of contribution from the increments.

15. It is not in dispute that in 1941 and for some years thereafter the population of the City and its surroundings was not as high as it came to be by 1959 and the years following it. The development and construction of buildings both in private and public fields was not then as urgent and rapid as was the case by 1959 and thereafter. If the scheme was finalised within a reasonable period after the declaration of intention in October 1941 it is possible that the Town Planning Officer while framing the final scheme might not have thought it necessary then to provide for instance roads of the width of 50 feet and more or the same type of drainage and lighting systems provided in the scheme now framed. He might perhaps have then thought in the light of development then envisaged that roads of lesser width and drainage and lighting systems on a lesser scale would be sufficient. The costs of the scheme in that event would have been less than the one estimated in 1959 even without taking into account the higher cost of materials and labour in 1959. If subsequently it was found that the roads provided for and constructed under such a scheme required widening in view of the rapid pace at which the City and its surroundings actually grew the entire costs of such improvements would have fallen on the general revenues and not upon the local residents. It is true that the incremental value would also increase in proportion to the scale of the projects in the scheme. But if the Board were to come to the conclusion that it would not be on such a scale so as to justify a 50 per cent contribution can we say that such a consideration was so totally extraneous or irrelevant as to render it beyond the jurisdiction of the Board? In point of fact as was pointed out by Mr. Shah himself the draft scheme did not include the three obligatory items namely water supply drainage and lighting probably because it was then thought in the light of the development of this area then envisaged that these items would in course of time be carried out by the Municipal authority as part of its statutory duties rather than be included in the scheme thereby throwing the burden of these items on the scheme. It is well-known that by 1958 the position was radically changed. By 1958 even the Town Planning Officer realised the rapid growth that had already taken place and anticipating an intensified pressure on roads drainage water supply and lighting he had to provide for roads of the width of 50 feet and more and a relatively larger and therefore costlier drainage and lighting schemes. It was for this reason that he had to make variations in the draft scheme in 1958. It is not possible for us to say in these circumstances that this fact of the delay as one of the factors taken into account was so extraneous and irrelevant a consideration as to justify the contention that it was beyond the Boards powers to consider it.

16. Similarly the fact that the scheme contains items which are in the nature of obligatory duties under Clauses (4), (7), (18) and (19) of Section 63 of the Bombay Provincial Municipal Corporations Act cannot also be said to be an extraneous consideration. The Board was entitled to consider that the Corporation was bound under the statute to provide these amenities to the residents within its jurisdictional area irrespective of the scheme and that therefore it was not quite fair and just that the entire costs of these items should be thrown on the local plot-holders. Mr. Shah however contended that since Section 18 of the Town Planning Act permits the inclusion of such items in the scheme and also permits the inclusion of their costs in the cost of the scheme it is for the local authority to decide whether it will carry out its obligatory duties under the Municipal statute or under the Town Planning Act. It was also argued by Mr. Shah that since these items namely roads lighting drainage and water supply though obligatory under the Municipal statute were covered by Section 18 of the Town Planning Act the Town Planning Act being a special Act. these obligations have to be satisfied by the Corporation once they were included in the scheme and therefore the costs relating to them cannot only be included under Section 18 within the cost of the scheme but must also be met from the contributions and not from the general revenues. Mr. Shah also argued that under Section 63 of the Municipal Corporations Act the local authority has been given the power to provide for these obligatory items by any means or measures which it is lawfully competent to it to use or to take. Under Section 63 of the Municipal Corporations Act said Mr. Shah the local authority was entitled not only to include these costs in the costs of the scheme but to recover under the provisions of the Town Planning Act the costs of these obligatory items by means of contribution from increments. Mr. Shah however forgot that where such obligatory items are included in a scheme the Municipal Corporation is performing its task both under the Municipal Corporations Act as also under the Town Planning Act. The question would be whether the entire costs must be met from the local residents who are entitled to the consideration that they had been so far paying taxes and were therefore entitled to these amenities. The fact that these items are covered by Section 18 of the Town Planning Act does not prevent these items from being still obligatory items under Section 63 of the Municipal Corporations Act 1949 The words by any means or measures which it is lawfully competent to it to use or to take used in Section 63 of the Municipal Corporations Act and relied upon by Mr. Shah merely mean that the duties enumerated in that section and cast upon the Municipal Corporation thereunder are to be carried out by the Corporation by any of the means and measures permitted under that statute. This however does not mean that because the costs of obligatory items are allowed to be included under Section 18 of the Town Planning Act the Municipal Corporation can throw their entire burden upon the plot-holders under the scheme. The question as to the extent of burden which should properly and fairly be borne by the plot-holders is a different question and has to be decided by the Town Planning Officer and the Board of Appeal under the provisions of the Town Planning Act. It is no doubt true as was rightly pointed out by Mr. Shah that if the obligatory duties were included in the scheme the local residents having plots within the area of the scheme would have the advantage of having these items more expeditiously carried out than if they were to be carried out by the Corporation without their being included in the scheme. That consideration no doubt is to a certain extent correct and to that extent it would be permissible both for the Town Planning Officer and the Board to consider to what degree in view of such an advantage the local plotholders should bear the burden. Nevertheless it is not in our view a consideration which the Board could not take into account that except for the advantage or benefit of expedition the residents were entitled to these amenities by reason of Section 63 of the Municipal Corporations Act.

17. In the case of a City with a rapidly increasing population the development of a new area residential or otherwise would by itself be a matter of general benefit and not a mere local benefit to those who have migrated to such an area inasmuch as such development must relieve a not inconsiderable pressure upon the availability of the civic amenities made available in the already developed areas. To that extent it would be legitimate to consider that it is just and proper that the local authority must share the burden of a Town Planning Scheme as every development of a new area would conduce to the welfare of the general public at large. For that reason it would not be either unjust or improper if in the case of a scheme where some obligatory items are included the cost of which would otherwise be met with from general revenues to take into consideration such a fact for the purpose of determining a just and equitable distribution of the burden of such items.

18. The last question is whether the fact that several plot-holders had been paying for such a long time taxes though the corresponding amenities were not extended to the entire area was an extraneous consideration This is not to say that the Corporation was not entitled to levy the taxes. It would appear that prior to 1950 the Borough Municipality of Ahmedabad as it then was. was charging on the holders of these plots under the provisions of the Bombay Municipal Boroughs Act 1925 two types of taxes known as general water rate and general sanitary cess. There can be no dispute that though water connections were not furnished to these local residents and individual sanitary services were not extended to them the Municipal Borough as it then was entitled to levy and did in fact levy these taxes. When the Board of Appeal referred to the fact that the local authority had been recovering taxes from the scheme area the Board probably had in mind the situation which prevailed after the Bombay Provincial Municipal Corporations Act of 1949 came into operation. Under Section 127 of that Act it is provided that the Corporation shall impose the taxes therein enumerated including property taxes. As stated in Section 129 property taxes leviable under Section 127 include amongst other taxes a general tax of not less than 12 percent of the rateable value of buildings and lands situate in the City which may be levied by the Corporation. There can be no dispute that since 1950 this tax has been levied and collected from the plot-holders or residents in the area under the scheme without their having been provided with the amenities they were entitled to under the Act. Mr. Shah tried to suggest that the observation made by the Board of Appeal in paragraph 17 of their judgment is not a correct observation. He however is not entitled to challenge that observation in view of the fact that in the petition filed by the Corporation that observation has not been challenged or disputed. Mr. Shah tried to rely upon Clause (vi) of paragraph (12) of the petition. The ground however taken in that clause is totally vague and cannot be said to be one challenging or disputing the observation made by the Board of Appeal in the aforesaid paragraph of its judgment. In our view it would not be correct to say that in deciding what portion of the burden of the costs of these obligatory duties should be thrown upon the plot-holders the fact that several of these plot-holders have been paying for the last several years the general tax without the corresponding amenities having been furnished to them was either an irrelevant or extraneous consideration which would vitiate the decision of the Board.

19. The Town Planning Act does not furnish any principles which can guide the Board of Appeal in determining the question as to the rate of contribution leviable under the Act and therefore the only rational way of judging that question would be to ascertain how far the costs of the various items in the scheme can be regarded as fair equitable and proper charge upon the scheme. If in arriving at such a decision the Board of Appeal took into consideration the factors referred to above it would not be possible for us to say that they were totally irrelevant or extraneous to the Act or were beyond the competence of the Board of Appeal.

20. These were the only contentions raised before us We are not able to agree with or accept any one of them. For the reasons aforesaid this and the other 355 applications must be dismissed and the Rules issued therein must be discharged. So far as the order of costs is concerned in view of the fact that identical questions arise in all these matters and all of them have been called out and heard together we think that it is just and proper that we should quantify the costs. The order of costs will be as follows: In 108 matters where the respondents are not represented by any advocate and which are separately set out in the minutes of the Sheristedar and in 31 others where Mr. S.P. Shah is holding for Mr. R.D. Patel in his absence there will be no order of costs. In the remaining applications except in Special C.A. 441 of 1960 the petitioner-Corporation will pay Rs. 50/as costs in each of them to the Respondent or Respondents therein. So far as Special Civil Application No. 441 of 1960 is concerned the petitioner Corporation will pay to the respondents one set costs fixed at Rs. 300/-.


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