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TMI Blog1967 (8) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ) dated 11th August, 1964 to the effect that his lands were needed for the public purpose of a park quashed. In Writ Petition No. 228 of 1966 the prayer is that the designation of the petitioners' land as being earmarked for recreation centre and for green belt in the development plan of 'P' Ward of the City of Greater Bombay should be removed, that their lands should be redesignated as earmarked for industrial purpose, that the order of the Assistant Engineer, Bombay Municipal Corporation, rejecting the petitioners' proposal for construction of two factory buildings and lavatory blocks should be quashed and a declaration be made that ss. 9, 10, 11, 12 and 13 of the Bombay Town Planning Act are ultra vires the Constitution of India. In Writ Petition No. 251 of 1966 the prayers include an order for quashing Resolution No. 1173 of December 19, 1963 and Resolution No. 343 of July 2, 1964 of the first respondent and for removal of the designation attached to the petitioners' land as reserved for Government purposes in the Development Plan of 'P' Ward of Greater Bombay. In Writ Petition No. 256 of 1966 the prayers are inter alia for the issue of writs declari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to proceed with the construction of the intended shed had become absolute under S. 345 of the Bombay Municipal Corporation Act. On March 22, 1962 the Deputy Municipal Commissioner (Suburbs) acknowledged receipt of the letter. By letter dated April 18, 1962 the Executive Engineer, Development Plan, informed the petitioners that their request for a commencement certificate would not be reconsidered until the development plan was finalised. By their solicitor's letter dated June 13, 1962 the petitioners wrote to the 1st respondent, i.e. the Bombay Municipal Corporation, that the refusal to grant a commencement certificate was wrongful. This was followed up by a writ petition in the High Court of Bombay being Miscellaneous Petition No. 256 of 1962 challenging the said refusal as illegal and invalid. By order dated September 7, 1963 the High Court of Bombay allowed the petitioners' application on the ground that the powers and functions of the Bombay Municipal Corporation under S. 12 of the Act had not been exercised by an officer prescribed under S. 86 of the Act and the decision dated January 27, 1962 was liable to be set aside. The development plan for Greater Bombay (D Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugust 12, 1964. The petitioners' case is that the High Court rejected petition No. 248 of 1964 on the view that they had no cause for complaint unless and until the first respondent refused permission to commence construction. They therefore submitted building plans through their architect on January 9, 1965 for construction of a factory shed with a prayer for the issue of a commencement certificate. The third respondent i.e. the Assistant Engineer, Bombay Municipal Corporation by letters dated January 25, 1965 and February 13, 1965 rejected the petitioners' proposal for construction of factory buildings on their lands on the ground that the lands fell in the reservation for playgrounds and 200 feet wide green belt in the development plan. The petitioners again went up to the Bombay High Court on July 2, 1965 by another petition No. 312 of 1965 for, the issue of a writ of mandamus for setting aside the orders of the third respondent dated January 25, 1965 and February 13, 1965 and directing the respondent to remove the designation of recreation centre and green belt from the petitioners' land and to designate the entire holding as industrial area in the development p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was placed before the Development Commitee for due consideration. The Development Plan Committee considered the suggestions made by the public and gave a report in respect thereof to the first respondent from time to time who finalised the plan at its meeting held on July 2, 1964. According to the deponent, the letters dated January 25, 1965 and February 13, 1965 addressed by the third respondent were in proper exercise of the right of rejection of the petitioners' proposal for construction of a factory building. Finally the deponent stated that no part of the petitioners' lands were earmarked for green belt in the development plan as finally approved by the respondent, that out of 32,000 sq. yds. of the petitioners' lands, 12,144 sq. yards of land had been earmarked and reserved for playground' 804 sq. yds. had been earmarked and reserved for municipal wholesale market, 7,821 sq. yds. had been earmarked and reserved for public road, 1167 sq. yds. fell under residential zone and the balance of 8,702 sq. yds. fell in the industrial zone. It will therefore be noticed that the facts as laid in the petitions are not all admitted in the affidavit, but nothing was sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s like drainage and water supply, places of public utility, industrial development etc. The legislature was well aware of the practical difficulties and the magnitude of the task. A development plan for a huge area like Greater Bombay could not be formulated within a space of weeks or months. A survey had to be made of the area under the local authority to take note of the existing conditions and the plan pre- pared keeping in mind the facilities available and those which might be had in the forseeable future. Sections of the area have to be set apart in the different localities for industrial and commercial development, for private housing, for the purpose of the Union or the State, for educational and other institutions, as also for parks and places of public resort. The authority responsible for the drawing up of the plan had to have regard to the wishes and suggestions of the public and in particular, architects, engineers, industrialists and. public bodies. Of necessity, a skeleton plan had to be sketched at first which could be given a final shape after considerable deliberation following the suggestions of the parties interested and the recommendations received. Let us now s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the entire area within the jurisdiction of the local authority was to be carried out and regulated. In particular, it had to contain several proposals, namely:- (a) for designating the use of the land for the purposes such as (1) residential, (2) industrial, (3) commercial, and (4) agricultural, (b) for designation of land for public purposes such as parks, playgrounds, recreation grounds, open spaces, schools, markets or medical, public health or physical culture institutions; (c) for roads and highways; (d) for the reservation of land for the purpose of the Union, State, any local authority or any other authority established by law in India; and (e) such other proposals for public or other purposes as may from time to time be approved by a local authority or directed by the State Government in this behalf. Under s. 8 various particulars had to be published and submitted to the State Government along with the development plan inclusive of a report of the surveys carried out by the local authority, a report explaining the provisions of the development plan, a report of the stages by which it was proposed to meet the obligations imposed on the local authority by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan comes into force. The idea behind this sub-section is that if any land is to be set apart for public purposes such as parks etc. mentioned in cl. (b) of s. 7 or any other public purpose which might be approved by a local authority or directed by the State Government in terms of cl. (e) of S. 7, the State Government must examine whether it would be possible for the local authority to be able 'to acquire such land by private agreement or compulsory purchase within a period of ten years. This acts as a check on the local authority making too ambitious proposals for designating lands for public purposes which they may never have the means to fulfil. It is obvious that the local authority must be given a reasonable time for the purpose and, the legislature thought that a period of ten years was a sufficient one. S. 11(1) empowers the local authority to acquire any land designated in the development plan for a purpose specified in cls. (b) (c), (d) or (e) of S. 7 either by agreement or under the Land Acquisition Act. Under sub-s. (2) of s. II the provisions of the Land Acquisition Act of 1894 as amended by the Schedule to the Act are to apply to all such acquisitions. The Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in this behalf direct. Under sub-s. (2) if the local authority does not communicate its decision within three months from the date of such acknowledgment, such certificate shall be deemed to have been granted to the applicant. Sub-s. (3) provides that no compensation is to be payable for the refusal of or the insertion or imposition of conditions in the commencement certificate. This is subject to' the provisions of ss. 14 and 15. Sub-s. (4) lays down that any work done in contravention of s. 12 or of sub-s. (1) of s. 13 may be pulled down by the local authority. In this case, we are not concerned with the applicability of ss. 14, 15 and 16. S. 17 which was attacked in these cases provides that: At least once in every ten years from the date on which the last development plan came into force and where the plan is sanctioned in parts from the date on which the last part came into force, the local authority may, and if so required by the State Government after the date on which a development plan for any area or, as the case may be, the part of such plan has come into force shall, carry out a fresh survey of the area within its jurisdiction with a view to rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for carrying out the purposes of the Act. We may now proceed to take note of how the Bombay Municipal Corporation proceeded to make the development plan against which common complaints have been made. The gist of the contents of the counter affidavits is as follows. After the Act came into force on April 1, 1957, the first respondent by resolution No. 409 dated July 7, 1958, declared its intention to prepare a development plan for the entire area of Greater Bombay within its jurisdiction. In terms of rule 3 framed under the Act, a map of the said area accompanied the said declaration and within 15 days of the date of such declaration the first respondent despatched a copy of the same together with a copy of the map to the State Government for publication in the Official Gazette. On September 18, 1958 the first respondent published its intention to prepare a development plan by means of advertisements in newspapers circulating in Greater Bombay and affixing copies of the advertisements on the notice boards at its head office and other prominent places in the area. By the said publications, the first respondent invited objections and suggestions from the public within a period of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The advertisements published in pursuance of s. 9 of the Act announced to the public that communications in writing containing suggestions relating to the plan would be welcome within a period of two months. Many such suggestions were received and considered by the Development Plan Committee who made reports from time to time to the first respondent. After considering such reports of the Development Plan Committee, the first respondent at a meeting held on July 2, 1964 finalised the development plan after incorporating therein such suggestions as it thought proper or necessary. On July 8, 1964, the development plan was submitted by the Municipal Commissioner to the State Government for its sanction under S. 10 of the Act. The State Government forwarded all objections to the development plan received by the first respondent to the Special Consulting Surveyor to the Government of Maharashtra specially appointed to advise the Government on the development plan. The Consulting Surveyor scrutinised the objections and- advised the Government thereon. In cases where changes had been made by the first respondent after publication of the draft development plan, the Consulting Surveyor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd without any opportunity being given to him to make any representation in respect thereof. It was next argued that the powers and functions of a local authority for purposes of ss. 12 and 13, amongst others were to be exercised and performed by the Municipal Commissioner of Bombay under s. 86 of the Act. Under s. 12 the final and only authority who had the power to grant or withhold permission to carry on any development work was the Municipal Commissioner. He could, under s. 13 grant or refuse a commencement certificate at his own sweet will and pleasure there being nothing to guide him in such a matter before the preparation of a development plan. It was argued that even after the preparation of such a plan a commencement certificate could be refused arbitrarily and there was no provision for any appeal from or revision of the order containing the refusal. It was next argued that by the combined operation of ss. 4 and 11(3) the local authority could easily delay the acquisition of any land designated for public purposes under s. 7 of the Act for 14 years and if resort was had to power,% under s. 17 of revising the development plan at the end of this period of 14 years. pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be embraced for designation for a public purpose. In all such cases where large powers are given to certain authorities the exercise whereof may make serious in-roads into the rights of property of private individuals, we have to see whether there is any guidance to be collected from the Act itself, its object and its provisions, in the light of the surrounding circumstances which made the legislation necessary taken in conjunction with well known facts of which the court might take judicial notice. We may in this connection refer to a judgment of this Court in Jyoti Pershad v. Administration for The Union Territory of Delhi([1962] 2 S.C.R. 125). The facts in that case were as follows. The petitioner who was the owner of a house containing several rooms let out to different individuals, desired to demolish the same and reconstruct it. He submitted a plan to the Council of the Delhi Municipal Committee and applied for sanction for the reconstruction of the house. After the sanction of the plan, he filed suits for eviction of nine tenants under s. 13(1)(g) of the Delhi and Ajmer Rent Control Act 38 of 1952. In order to succeed in the suits he had to show that he had a plan sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unconstitutional and violated the petitioner's rights guaranteed by Arts. 14 and 19(1)(f) of the Constitution. There it was argued that s. 19(3) of the Act vested an unguided, unfettered and uncontrolled power in an executive officer to withhold permission to execute a decree which a landlord had obtained after satisfying the reasonable requirements of law as enacted in the Rent Control Act. It was further urged that neither s. 19 of the Act nor any other provision of it indicated the grounds on which the competent authority might grant or withhold permission to execute decrees and the power conferred was therefore arbitrary and offended Art. 14 of the Constitution. It was further urged that there was an excessive delegation of legislative power as the executive authority could at its sweet will and pleasure disregard rights to property without any guidance from the legislature. A point was further raised that such refusal might go on for an indefinite and indeterminate period of time affecting the petitioner's right to enjoy his property and imposing an excessive and unreasonable restraint on his right. The import and scope of Art. 14 of the Constitution was examined in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into better dwellings. The further objection that Parliament when enacting the Act could easily have indicated with reference to the several grounds on which eviction could be had under the Rent Control Act, the additional restrictions or further conditions which would be taken into account by the competent authority, was met by saying: In the context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provision for them. The Legislature therefore is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act............ So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been excessive delegation of legislative power as to amount to an abdication of its functions, or that the discret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force to the facts of this case. The affidavits used show what an enormous increase of population has taken place in Bombay in recent years. One cannot lose sight of the fact that the growth of the city and the industrialisation of its surroundings are going on apace and if factories are allowed to be set up just where the, owners of certain plots of land want to erect them, it could render large areas unfit for residential purposes. In the area covered by Greater Bombay, the municipal authorities have to proceed with caution when sanctioning any development work. It is well known that a master plan for Greater Bombay was prepared even before the Act came into force but by the time the Act was enacted the same was found to be out of date. The preparation of a development plan for Greater Bombay was an immense task and the authorities proceeded with it in a manner to which no exception can be taken. They formed an Advisory Committee, prepared a tentative development plan and ultimately the development plans for different wards. At all stages, suggestions and objections were received and, wide publicity was given to the steps which were being taken from time to time. Although s. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration of intention to prepare a town planning scheme was made under s. 22(1) of the Act in respect of certain areas of land which included some lands of the petitioners. On June 13, 1960, a draft Town Planning Scheme was prepared under s. 23(1) and it was published in the Gujarat Government Gazette dated June 23, 1960. The petitioners submitted objections and suggestions before the Town Planning Committee. After consideration of the same, the second respondent forwarded the Town Planning Scheme to the third respondent, the State of Gujarat, under s. 28(1) of the Act. The third respondent sanctioned the draft scheme and appointed a Town Planning Officer. This officer issued a public notice in October 1961 inviting objections and suggestions from owners of land. The petitioners again filed objections in November 1961 before the Town Planning Officer and here also they reiterated the same objections and suggestions which they had placed before the Town Planning Committee at the earlier stage, and before the second respondent later. In the first notice issued by the Town Planning Officer, it was mentioned that the petitioners were being allotted new plots measuring 19,087 sq. yard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and the contents of a Town Planning Scheme and Chapter IV deals with declaration of intention to make a scheme and making of a draft scheme. Chapters IV, V, VI, VII and IX were considered in some detail as also r. 3 relating to the publication of the declaration under s. 4 and r. 4 dealing with the publication of the development plan. The Court noted after referring to the sections and the rules that a perusal thereof clearly showed that elaborate provisions had been made for giving as wide a publicity as possible, at all stages, to the public and to owners of land who may be affected by the scheme. They provided for objections which were being heard by the authorities concerned. The objection that unfettered and arbitrary power was vested in the Town Planning Officer in the matter of deciding various points covered by s. 32 of the Act was turned down. Ultimately, the Court said: ........ having due regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Art. 19(5) of the Constitution. The considerations referred to above will also show that the grievance of the petitioners tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al from the decision under s. 13 was provided for is a matter of no moment for the authority under s. 13 is no less than the Municipal Commissioner himself or the Chief Officer of the Municipal Borough or a person exercising the power of an Executive Officer of any local authority. When the power had to be exercised by one of the highest officers of the local, authority intimately connected with the preparation of the development plan in all its stages, it is difficult to envisage what other authority could be entrusted with the work of appeal or revision. The preparation of the tentative plan or the final development plan was not something which was left to the pleasure or discretion of the local authority. Immense pains were taken by a vast number of people and it was their combined effort and skill which went to the making of the development plan preceded by the tentative plan. S. 13 prescribes that the local authority should make an inquiry before granting or refusing a commencement certificate. The Authority must therefore look into all material available to it including the tentative plans and the final development plan and then make up its mind as to whether a commencement c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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