1976 (8) TMI 171 - HC - Indian Laws

Issues Involved:

1. Whether the final scheme sanctioned by the Government is null and void due to non-compliance with procedural requirements, specifically the service of individual notices under old sub-rule (3) of Rule 21.
2. Whether Section 51(3) of the Bombay Town Planning Act, 1954, which gives effect to the finally sanctioned scheme as if enacted in the Act, protects the scheme from being challenged due to procedural defects.
3. The mandatory or directory nature of old sub-rule (3) of Rule 21 and its impact on the validity of the final scheme.
4. The applicability and interpretation of the principles of natural justice, particularly the doctrine of audi alteram partem, in the context of procedural requirements under the Act.

Issue-wise Detailed Analysis:

1. Whether the final scheme sanctioned by the Government is null and void due to non-compliance with procedural requirements, specifically the service of individual notices under old sub-rule (3) of Rule 21:

The petitioner argued that as a tenant and a person affected by the scheme, he was entitled to an individual notice under old sub-rule (3) of Rule 21. The failure to serve such notice was claimed to be a breach of mandatory requirements, rendering the final scheme null and void. However, the court held that even assuming old sub-rule (3) was mandatory, the non-compliance did not nullify the scheme. The court emphasized that the essential requirement was the compliance with sub-rule (1) of Rule 21, which provided for general notice through publication in newspapers and posting in prominent places. This general notice was deemed sufficient to inform all persons affected by the scheme, including the petitioner.

2. Whether Section 51(3) of the Bombay Town Planning Act, 1954, which gives effect to the finally sanctioned scheme as if enacted in the Act, protects the scheme from being challenged due to procedural defects:

The respondents contended that Section 51(3) made the finally sanctioned scheme immune from challenge on the grounds of procedural defects. The court agreed, stating that once the scheme is sanctioned and becomes part of the Act, it cannot be invalidated for procedural defects unless such defects amount to a fundamental breach of jurisdiction. The court referred to the decision in Minister of Health v. The King (1931) AC 494, where it was held that procedural defects do not render a scheme null and void unless they are fundamental breaches of jurisdiction.

3. The mandatory or directory nature of old sub-rule (3) of Rule 21 and its impact on the validity of the final scheme:

The court analyzed whether old sub-rule (3) was mandatory or directory. It concluded that even if the sub-rule was mandatory, the failure to comply with it did not nullify the final scheme. The court distinguished between essential minimum requirements and additional procedural safeguards. It held that old sub-rule (3) was an additional safeguard and not an essential minimum requirement. Therefore, non-compliance with old sub-rule (3) did not render the final scheme void.

4. The applicability and interpretation of the principles of natural justice, particularly the doctrine of audi alteram partem, in the context of procedural requirements under the Act:

The court examined the principles of natural justice, particularly the doctrine of audi alteram partem, which requires that affected persons be given an opportunity to be heard. It held that the general notice under sub-rule (1) of Rule 21 satisfied this requirement by providing sufficient opportunity for affected persons to raise objections. The court further noted that the substituted sub-rule (3) also provided for wide publicity and an opportunity for affected persons to file objections in writing. Therefore, the principles of natural justice were adequately safeguarded, and the failure to serve individual notices under old sub-rule (3) did not constitute a breach of these principles.

Conclusion:

The court dismissed the petition, holding that the final scheme sanctioned by the Government was not null and void due to non-compliance with old sub-rule (3) of Rule 21. The court emphasized that Section 51(3) protected the scheme from being challenged on procedural grounds, and the essential requirements of natural justice were met through the general notice provisions. The petitioner's request for leave to appeal to the Supreme Court was also rejected, as no substantial question of law of general importance was found to arise in the case.

← Previous Next →