9911796707
TMI Blog1991 (10) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Pole, Barartha, a registered trust, the owner of the plot of land of survey No. 163 situated in Ward No. 'C' in front of town hall in Sher Kota outside Saraspur gate in the city of Ahmedabad. The original plot consists of an area about 5 hundred to 6 hundred square yards in extent wherein' certain structures were laid and leased out to the tenants or sub-tenants for business purposes. The Town Planning Scheme was formulated by the municipal corporation exercise of its power under the Bombay Town Planning Act 1955 (Act 27 of 1956) for short 'the Act' and reconstituted the final plot Nos. 82 and 83 out of the original plot No. 59 of the Town Planning scheme No. 16, Sher Kota Admn. (Survey No. 163). The Town Planning Officer did not issue special notice as required under sub-rule (3) and opportunity provided for under sub-rule (4) of Rule 21. The appellants along with others filed civil suits challenging the action. The appellants' suit was decreed declaring that final plot Nos. 82 and 83 upon which the structures were standing with Municipal No. 352/3 and in occupation of the appellants is illegal, invalid and issued a permanent injunction restraining the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving or entitled to receive ..... the rent or profits of the property in connection with which it is used. Section 2(3) defines plot to mean a continuous portion of land held by one ownership . Section 2(9) defines reconstituted plot to mean a plot which is in any way altered by the making of a town planning scheme. Section 2(10) defines scheme to include a plan relating to a town planning scheme . Section 3(1) empowers every local authority to prepare and publish in the prescribed manner a development plan and to submit it to the State Govt. for sanction otherwise Government too is empowered to do so. Under sub-section (1) of s. 4 the local authority is authorised to make a declaration of its intention to prepare a development plan and to despatch a copy thereof to the State Govt. for publication in the Official Gazette. The State Govt. after inviting suggestions from the public within a period of two months is to publish in the Official Gazette the fact of making such declaration or intention as aforesaid. Section 7 prescribes the particulars of the Master Plan. Chapter III prescribes the making and the contents of the town planning scheme. Section 18 provides that a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 25 envisages specification of the particulars in the draft scheme. Clause (a) specifies the area , ownership and tenure of each original plot ; (b) the land allotted or reserved under sub-clause (a) of Clause (2) of s. 18; (c) the extent to which it is proposed to alter the boundaries of original plots etc. Under section 26 the size and shape of every reconstituted plot shall be determined, so as to render it suitable for building purposes etc. with further particulars enumerated in sub-sections (2) and (3) thereof. Section 27 gives an opportunity to any person effected by such scheme to submit objections, if any, within six months from the date of publication of the draft scheme. The local authority shall consider such objections; it is empowered to modify such scheme as it thinks fit in the light of the objection and then to submit it to the State Govt. within four months from the date of its publication in the official Gazette as required under section 28(1). The State Govt. within six months from the date of the submission of the draft scheme by the local authority original or with modification shall sanction such scheme with or without any further modification and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), as per sub-rule (9). Section 54 provides that on and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme shall be ejected summarily as per the prescribed procedure and local authority shall also be entitled to remove, pull down or alter any building or other work in the area included in the scheme under section 55 after giving notice in the prescribed manner and in accordance with the procedure of the scheme. Section 56 gives power to the State Govt. to vary scheme on grounds of irregularity or infirmity in making the scheme. Under section 60 every party to any proceeding before the Town Planning Officer shall be entitled to appear either in person or by his recognized agent. Though the challenge in the appeal is confined to a limited point, as will presently appear, we have given the conspectus of the statutory scheme to bring out the fact that the Town Planning Officer before making the final scheme and submitting it to the local authority is required to follow the procedure prescribed by the Act and the Rules. He is entitled to alter the plots, make reconstitution of plots, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein the time, as provided in rule 30, within which the owner of any property or rights which is injuriously affected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the Town Planning Officer. (2) The Town Planning Officer, shall, after the date fixed in the notice given under sub- rule (1), continue to carry on his duties as far as possible on working days and during working hours. (3) Special notice of at least three clear days shall be served upon the person interested in any plot or in any particular comprised in the scheme, before the Town Planning Officer, proceeds to deal in detail with the portion of the scheme relating thereto. Such special notice shall also be posted at the office of the Town planning, Officer. Such notice shall be given in the cases mentioned in clause (i), (ii) and (iii) of sub-section (1) of s. 32 and in any other cases where any persons have not been sufficiently informed that any matter affecting them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. It is settled law that before depriving a person of his property or imposing any further liability, the principles of natural justice require prior notice and reasonable opportunity to him to put forth his claim or objections. Rule 21(3) speaks of special notice of at least three days duration. It is in consonance with and in compliance of the principles of natural justice. The legislature thus made a distinction between the general notice envisaged in sub-rule (1) of Rule 21 and special notice under sub-rule (3) of Rule 21, which was in addition to the former. The purposes of clauses (3) and (4) of Rule 21 are obvious and the consequences that would ensue are self- evident. These sub-rules subserve the principles of natural justice to avoid arbitrariness offending Art. 14 and to be just and fair procedures satisfying the mandate of Art. 21. Non observance otherwise would render the scheme illegal. No provision of a statute or Rule would be rendered surplusage or otiose. The construction of the Rules by the Full Bench would, however, result in rendering subrules (3) (4) surplusage and otiose. Sub-rule (4) postulates that Town Planning Officer shah give to a person effecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and Ors,, 1970 (11) G.L.R. 993 and Mohanlal Jesinghbhai v. P.J. Patel, Town Development Officer, Ahmedabad Municipal Corporation * Ors., 1970 (11) G.L.R. 1035, laid down the law correctly. The finding of the Full Bench in the first part of its judgment to the effect that non-compliance with the requirements of sub-rules (3) and (4) of Rule 21 does not vitiate the scheme is not sound in law. It is seen that the appellant has been in possession as tenant for well over half a century and, therefore, it is injuriously affected by the scheme which has the effect of terminating his possession and this adversely affects its business in the demised premises. Since it is a running business over the years, the respondent is directed to provide an alternative premises by allotting a suitable shop within the city to the appellant; to put it in possession thereof and until then allow its occupation of demised shop. In case the appellant does not vacate or creates any obstruction in any form in the matter of possession, it would be open to the respondent to have the appellant ejected summarily. In this view we decline to interfere with the scheme. The appeal is accordingly allowed to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
