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TMI Blog1987 (1) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... s which are accordingly dismissed with costs. The judgment of the High Court will now be given effect by the authorities, taking note of the several undertakings given to the High Court and this Court at various stages. - Civil Appeal Nos. 2780-81 of 1982 - - - Dated:- 19-1-1987 - REDDY, O. CHINNAPPA AND OZA, G.L., JJ. JUDGMENT For the Appellant : K.S. Cooper, Dr. Y.S. Chitale, Mrs. P.S. Shroff, S.S. Shroff and Mrs. Kiran Chaudhary. For the Respondent: M. Veerappa, A.K. Sharma, K.N. Singh, S.S. JavaIi, G.P. Shivaprakash and B.P. Singh CHINNAPPA REDDY, J. Bangalore was a beautiful city--once. It was a city with magic and charm, with elegant avenues, gorgeous flowers, lovely gardens and plentiful spaces. Not now. That was before the invasion of concrete and steel, of soot and smoke, of high-rise and the fast buck. Gone are the flowers, gone are the trees, gone are the avenues gone are the spaces. We are now greeted with tail puffing chimneys and monstrous high-rise buildings, both designed to hurt the eye, the environment and the man. But they are thought by many as symbols of progress and modernity. They have come to stay. Perhaps they are necessary. Nostalgi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orderly growth of the city, in "Keeping with the capacity of its services, like water supply, drainage and roads". I entirely agree that for new areas we must provide for more density of population if we are to get adequate mileage from per capital expenditure, and if we are to release sufficient lung-spaces for recreational and community activities. In fact, we have long back suggested to City Planners to plan for self-contained and self-sufficient clusters of multiple-storey blocks, with their own plazas, shopping and recreational centers, in carefully selected locations and in keeping with the available services. Again, there is no doubt that coverage per plot must be systematically reduced through imaginatively formulated bye-laws, if we are to continue the garden-city character of the City's new areas. It is utterly mystifying however, that such obviously valid thoughts and suggestions should end with the plea for "concentrated growth"-presumely in the central area of the city and preferably with high-rise buildings. Such growth which is bound to obliterate what we have still left of this beautiful city and put further strains on its traffic, water supply and drainage, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the locality submitted a memorandum to the Governor and the Chief Minister of the State to take appropriate action to prevent the construction of high-rise buildings in a residential area such as the Raj Mahal Vilas Extension. There was no response from the authorities. In desperation, some of the persons who submitted the memorandum resorted to 'Public Interest Litigation' and filed the writ petitions out of which the present appeals arise. Their principal complaint was that the Outline Development Plan for Bangalore which had been published in the prescribed manner had been ignored by the authorities in granting permission to the appellants to construct the high-rise buildings. The first of the grounds mentioned in the writ petitions was that permits had been granted to construct eight-floor residential buildings going to a height of 80 feet whereas under the regulations the maximum permissible height of a building was only 55 feet. The inconveniences, discomforts and the hazards to which such a high-rise building in a residential locality would expose the other residents of the locality were explained in the writ petition and writs were sought to quash the permits granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cost and that they will raise no objection whatever to this Court passing an order for demolition of the said floors if the Court was ultimately inclined to pass such an order and that they would claim no compensation for demolition, if ordered. The present appellants contested the writ petitions. The writ petitions appeared to have been argued in the first instance before a learned single Judge who after hearing the petitions for some considerable time referred them for hearing by a Division Bench. The Division Bench commenced hearing the writ petitions on 16.3.82 and on 22.3.82 a further contention was raised by the appellants that the Outline Development Plan and the Regulations were never published, consequently they have never become effective and, therefore, there was no need for any compliance with the requirements of the plan and the regulations. As it turns out this is the only contention which was finally argued before the High Court and before us. The High Court overruled the contention and declared the licences granted for construction illegal and directed the Commissioner, Corporation of the City of Bangalore to modify the licences so as to bring them in conformi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment Plan (For short, O.D.P.). In February 1963 the Mysore Town and Country Planning Act, 1961 came into force with effect from January 15, 1965. Section 81-A(a) of the Act provides that the Outline Development Plan for the Bangalore Metropolitan Area prepared by the Bangalore Metropolitan Planning Board shall be deemed to be the Outline Development Plan of the Planning Area comprising the City of Bangalore, prepared under the Act, by the Planning Authority of the Area. Section 81-(a) further provides that the said plan along with the particulars specified in clauses (ii), (iii), (iv) and (v) of Section 12(2) shall be published and submitted to the State Government for provisional approval. Section 81--A(b) provides that on receipt of the plan and particulars, the State Government shall after making such modifications as it deems fit, return the plan and the particulars to the Planning Authority, which shall thereupon take further action in accordance with the provisions of Section 13. Section 2(3) defines 'land use' to mean the major use to which a plot of land is being used on any specified date. Section 2(4) defines 'notification' to mean a notification published in the Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purposes of the Union, any State, any local authority or any other authority established by law in India; (d) proposals for declaring certain areas as areas of special control, development in such areas being subject to such regulations as may be made in regard to building line, height of buildings, floor area ratio, architectural features and such other particulars as may be prescribed; (e) such other proposals for public or other purposes as may from time to time be approved by the Planning Authority or directed by the State Government in this behalf. Explanation--'building line' means the line up to which the plinth of a building adjoining a street may lawfully extend and includes the lines prescribed, if any, in any scheme. (2) The following particulars shall be published and sent to the State Government through the Director along with the Outline Development Plan, namely:- (i) a report of the surveys carried out by the Planning Authority before the preparation of such plan; (ii) a report explaining the provisions of such Plan; (iii) regulations in respect of each land use zone to enforce the provisions of such plan and explaining the manner in which necessary p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pare an outline is published under sub-section (1) of Section 10, every land use, every change in land use and every development in the area shall conform to the provisions of the Act, the Outline Development Plan and the Regulations as finally approved by the State Government under subsection (3) of Section 13. The only other provision of the Act to which reference is necessary is, what we may call the, "Ganga" clause*, Section 76J which provides for 'Validation of acts and proceedings'. It is as follows: "76 J. Validation of acts and proceedings--No act done or proceeding taken under this Act shall be questioned on the ground merely of, (a) the existence of any vacancy in, or any defect in the constitution of the Board or any Planning Authority; (b) any person having ceased to be a member; (c) any person associated with the Board or any planning authority under section 4F having voted in contravention of the said section; or (d) the failure to serve a notice on any person, where no substantial injustice has resulted from such failure; or (e) any omission, defect or irregularity not affecting the merits of the case." We may also refer here to the rules relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E-9 Notice of Publication of Outline Development Plan Notice is hereby given that an Outline Development Plan of Bagalore City Planning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963) and a copy thereof is available for inspection at the office of the Planning Authority in Seshadri Road, Bangalore City during office hours. If there be any objection or suggestion in respect of the Outline Development Plan, it should be lodged on or before the 15th day of February, 1968. Every such objection or suggestion should either be presented in the office of the Planning Authority or sent by registered post to the Planning Authority. K. Balasubramanyam CHAIRMAN" After the State Government provisionally approved the Plan 'Notice of publication of Outline Development Plan' was published in the Mysore Gazette dated 10.10.68 again in Form II. The Notification was in the following terms: "OFFICE OF THE CHAIRMAN, PLANNING AUTHORITY BANGALORE CITY PLANNING AREA, BANGALORE-9 Notice of Publication of Outline Development Plan. Notice is hereby given that an Outline Development Plan of Bangalore City Planning Area has been prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient compliance with the requirement of Section 13(4) regulating the publication of the approved Plan and Regulations? There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'Unconscientious bad man' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parliamentary Legislation which is publicly made, delegated or subordinate legislation is often made, unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations in the Official Gazette, suggestive of a requirement that the Outline Development Plan and Regulations should bodily be incorporated in the Official Gazette. But if the entire scheme of the Act and the rules is considered as an integral whole it becomes obvious that what Section 13(4) contemplates besides permanently displaying the plan and the particulars in the offices of Director and Planning Authority and keeping available a copy for the inspection of the public at the office of Planning Authority is a public notice to the general public that the Plan and Regulations are permanently displayed and are available for inspection by the public. Such public notice is required to be given by a publication in the Official Gazette, This is how it was understood by the authorities and everyone else concerned and this is how it was done in the present case. This appears to be a reasonable and a rational interpretation on Section 13(4) and Rule 33 in the setting and the scheme. We are of the view that there was compliance with the requirements of Section 13(4) and Rule 33. We have earlier mentioned that Section 13(1) requires the provisional Outline Development Plan * See Narayana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, since in fact no such order had been published and no such order was brought to the notice of the Court. All that was available was an entry 'nil' against fountain pens in the declaration of policy as to import. We are unable to see how these two cases can be of any help to Shri Cooper. Shri Cooper also invited our attention to cases drawing a distinction between mandatory and directory statutory requirements but those cases again are of no avail to him in the view that we have taken. We also desire to state that the effect of the non-performance of a duty imposed by a statute in the manner prescribed by the statute is not discovered by a simple answer to the question whether the statute is mandatory or directory. These are not simple chemical reactions. The question whether a statutory requirement is mandatory or directory cannot itself be answered easily as was pointed out more than a century ago in Liverpool Borough v. Turner, [1861] 30 L J Ch 379. Many considerations must prevail and the object and the context are the most important. The High Court was of the view that such defect as there was in regard to publication of the Plan was cured by Section 76J,' the Omnibus Cura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curable defect capable of being cured by Section 76J. It is here that the failure of the appellants to plead want of publication or want to knowledge in the first instance assumes importance. In the answer to the Writ Petitions, the appellants took up the substantial plea that they had complied with the requirements of the Outline Development Plan and the Regulations but not that they had no knowledge of any such requirement. It can safely be said that the defect or irregularity did not affect the merits of the case. Finally, one last submission of Shri Cooper requires to be examined. Shri Cooper submitted that Section 13(1) used the words "the Plan and the particulars", Section 13(2) used the Words "the Plan and the Regulations," Section 13(3) used the words "the Plan and the Regulations" and Section 13(4) used the words, "the Outline Development Plan and the Regulations" as well as the words, "the Plan and the Regulations". This, according to Shri Cooper, signified that the particulars and the Regulations are not to be treated as part of the Plan but as creations distinct from the Plan. We do not think that we are entitled to split the unity and identity of the plan as suggested ..... X X X X Extracts X X X X X X X X Extracts X X X X
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