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TMI Blog1976 (8) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... orporation by a notification dated July 19, 1951 declared its intention to make a Town Planning Scheme under sub-section (1) of Section 9 of the Bombay Town Planning Act, 1915, in respect of the area of land shown in Plan No. 40 marked and verged blue, dated July 12, 1951. By this notification the Corporation invited objections or suggestions from any person likely to be affected by the scheme with respect to the declaration. One month's time was given to enable persons likely to be affected to file their objections before the Municipal Commissioner. Subsequent to that notification, the Government of Bombay by Resolution of March 9, 1953 sanctioned making of the Town Planning Scheme to be called the Town Planning Scheme Ahmedabad No. 16, in respect of the area of land shown in blue verge on the plan No. 40 dated July 12 1951, which was sent to the Government and which was open to the inspection of the public during office hours of the Corporation. In this Resolution it was also pointed out by the Government that no objections or suggestions to the making of the said Scheme have been received by the Government from any person likely to be affected by the said Scheme. The Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has since been given up by the petitioner in view of the decisions of the Supreme Court upholding the constitutional validity of the new Act and also in view of the Presidential Order suspending a citizen's right to move the Court for enforcement of the rights under Articles 14, 19 end 21. The challenge is now confined only to the petitioner's right to an individual notice under sub-rule (3) of Rule 21 of the Rules framed under the new Act. In support of the stand taken up by the petitioner, Mr. K. S. Nanavati appearing for the petitioner, invited our attention to the two earlier decisions of this Court referred to above and also to the relevant provisions of the Act and the Rules. Before we refer to the above two decisions relied upon by the learned counsel, we propose to read the relevant provisions of the new Act and the Rules to ascertain the scheme and object of the Act. 4. Scheme has been defined to include a plan relating to a town planning scheme. Development plan is defined to mean a plan for the development or re-development or improvement of the entire area within the jurisdiction of a local authority prepared under Section 3. Local authority is a Muni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such land. (2) Within twenty-one days from the date of such declaration (hereinafter referred to as the declaration of intention to make a scheme), the local authority shall publish it in the prescribed manner and shall despatch a copy thereof to the State Government. (3) The local authority shall send a plan showing the area which it proposes to include in the town planning scheme to the State Government. (4) A copy of the plan shall be open to the inspection of the public at all reasonable hours at the head office of the local authority. , (1) Within 12 months from the date of the declaration of intention to make a scheme the local authority shall make in consultation with the Consulting Surveyor a draft scheme for the area in respect of which the declaration has been made and publish the same in the prescribed manner: Provided that on application by the local authority in that behalf, the State Government may from time to time, by a notification in the Official Gazette, extend the aforesaid period by such period as may be specified not exceeding six months in all. (2) If the draft scheme is not made and published by the local authority within the period specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Town Planning Officer. Section 32 may be quoted in extenso.- 32. (1) In accordance with the prescribed procedure the Town Planning Officer shall,- (i) after notice given by him in the prescribed manner, define and demarcate the areas allotted to, or reserved for a public purpose or purpose of the local authority and the reconstituted plots; (ii) after notice given by him in the prescribed manner, determine, in the case in which a reconstituted plot is to be allotted to persons in ownership in common, the shares of such persons; (iii) fix the difference between the total of values of the original plots and the total of the values of the plots included in the final scheme, in accordance with the provisions contained in clause (f) of sub-section (1) of Section 64; (iv) determine whether the areas used, allotted or reserved for a public purpose or purpose of the local authority are beneficial wholly or partly to the owners or residents within the area of the scheme; (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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the Town Planning Officer and the local authority whether variation made by the Town Planning Officer is substantial or not, the matter shall be referred by the local authority to the State Government whose decision shall be final and conclusive. (3) The Town Planning Officer appointed for any draft scheme shall decide all matters referred to in sub-section (1) within a period of twelve months from the date of his appointment: Provided that the State Government may from time to time by order in writing extend the said period by such further period as may be specified in the order, and any such order extending the period may be made so as to have retrospective effect. Under Section 33, except in matters arising out of clauses (v), (vi), (viii), (ix), (x) and (xiii) of sub-section (1) of Section 32, every decision of the Town Planning Officer shall be final and conclusive and binding on all persons. Section 34 provides for an appeal by an aggrieved party to the appellate authority. Another important section which requires to be quoted is Section 51. That section reads- 51. (1) The State Government may, within a period of three months from the date of receipt of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of error, irregularity or informality. That could be done on the local authority bringing to the notice of the Government the defects in the scheme. Section 57 empowers the State Government, notwithstanding anything contained in Section 56, to vary or revoke a town planning scheme by a subsequent scheme made, published and sanctioned in accordance with the Act. Section 58 provides for compensation when final scheme is varied or revoked. Section 68 deals with transfer of right from original to reconstituted plot or extinction of such right. Section 69 provides for compensation to owners of any property or right which is injuriously affected by the making of a town planning scheme provided he makes a claim before the Town Planning Officer within the prescribed time. By Section 90 the Bombay Town Planning Act, 1915 is repealed. Notwithstanding the repeal, any declaration of intention to make a scheme, any application made to the State Government for sanction of the making of the scheme, any draft scheme published by a local authority, any sanction given by the State Government to the draft scheme and other matters enumerated therein are all saved. The above provisions outline the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y affected by the making of the town planning scheme shall be entitled under Section 69 to make a claim before him. Such notice 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. The old sub-rule (3) and the new subrule (3) substituted on May 13, 1974 may be read in juxtaposition:- Old sub-rule (3) New sub-rule (3) Special notice of at least three clear days shall be served upon the persons 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 be given in the cases mentioned in clauses (i), (ii) and (xiii) of sub-section (1) of Section 32 and in any other cases where any persons have not been sufficiently informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority shall depute any officer or servant to remove him. (c) If the person to be evicted resists or obstructs the officer or servant, deputed under clause (b) or if he reoccupies the land after eviction, the local authority shall prosecute him under Section 188 of the Indian Penal Code. Rule 30 runs as follows:- 30. Time limit for claiming compensation:- The time within which the owner of any property or right which is injuriously affected by the making of a town planning scheme may make a claim under Section 69 shall be three months from the date fixed in the notice given under sub-rule (1) of Rule 21 or the date of hearing of his case before the Town Planning Officer, whichever is later. That in substance is what is required to e done under the Rules !before a scheme finally emerges. -A. The contentions of Mr. K. S. Nanavati are these:- (1) The petitioner is a tenant and a person interested in the land and also affected by the Scheme. Rule 21 enjoins upon the Town Planning Officer to issue a notice to all persons whose rights in or over the land are affected and no such notice as contemplated under old sub-rule (3) was served upon the petitioner. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are to be expeditiously implemented in accordance with the true legislative intention of the Act. An elaborate procedure is prescribed under the Act and the Rules to achieve the desired objective. 8. In the context of the scheme of the Act and the Rules, let us first examine the correctness of the view expressed in the two cases reported in (1970) 11 Guj LR 993 and (1970) 11 Guj LR 1035. One of the two questions which came up for consideration in Kaushikprasad v. Ahmedabad Municipal Corporation (supra) was whether the decision of the Town Planning Officer to lay out a new road in a particular final plot and to reconstitute final plots is invalid and ineffective since it was in contravention of the second proviso to Section 32, subsection (1) or at any rate, in breach of Rule 21, clause (4) of the Rules. Precisely the same question is raised by Mr. K. S. Nanavati here. Dealing with the question raised. Bhagwati C. J., as he then was, in paragraph 5 observed:- What variation can be regarded as substantial for the purpose of attracting the applicability of the second proviso is not capable of precise definition nor is it possible to lay down any mechanical formula for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons affected' are not used by the rule-making authority in Rule 21, clauses (3) and (4) to denote owner of the land but are used in their plain natural sense to take in all persons, besides owners who are interested or affected by any particular of the scheme. The object of Rule 21 clause (4) clearly is that all persons who are affected by any particular of the scheme must have an opportunity of stating their views and making their representation before a decision is taken by the Town Planning Officer affecting them. A tenant of the land to be acquired is a person affected within the meaning of clause (4) of Rule 21 . 10. We may straightway point out that in the two cases referred to above, the scope of the applicability of Section 51 (3) of the Act was not raised and sub-rule (3) of Rule 21 was not construed in the context of Section 51 (3) with the result that the learned Judges did not consider the effect of Section 51 (3) to a scheme which received the final sanction of the Government. They were only concerned with the question as to whether old sub-rule (3) of Rule 21 which provided for giving individual notices to the persons affected was mandatory so as to vitiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme. Viscount Dunedin endorsed the opinion expressed by Herschell L. C., in Institute of Patent Agents v, Lockwood (1894) AC 347 at p. 360, who said:- No doubt there might be some conflict between a rule and a provision of the Act. Well, there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision and which must give way to the other. That would be so with regard to the enactment, and with regard to rules which are to be treated as if within the enactment. In that case, probably the enactment itself would be treated as the governing consideration end the rule as subordinate to it. After quoting the above passage, Viscount Dunedin summed up the position thus:- What that comes to is this: The confirmation makes the scheme speak as if it was contained in an Act of Parliament but the Act of Parliament in which it is contained is the Act which provides for the framing of the scheme, not a subsequent Act. If therefore the scheme, as made, conflicts with the Act, it will have to give way to the Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, contended by Mr. K. S. Nanavati that Rule 21 (3) and (4) were mandatory though they related to procedure and any defect in procedure which was mandatory vitiates the ultimate scheme sanctioned by the Government. This takes us to the question whether sub-rule (3) as it stood before the present sub-rule (3) was substituted was mandatory or directory. Even assuming sub-rule (3) as it stood was mandatory, the question would still remain whether the defect is curable or will nullify the validity of the final scheme sanctioned by the Government. Section 32, sub-section (1) lays down that the Town Planning Officer shall follow the procedure prescribed. The procedure prescribed is laid down in Rule 21. Sub-rule (1) of Rule 21 lays down the procedure with regard to the commencement of the duties of the Town Planning Officer. Sub-rule (3) prescribes the procedure to be followed in matters specified in clauses (i), (ii) and (xiii) of sub-section (1) of Section 32. It is not in dispute that the procedure as prescribed in sub-rule (1) has been followed and there is no controversy regarding what has been done by the Town Planning Officer in accordance with the requirements of sub-rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheme which eventually received the final sanction of the Government. Such an individual notice could always be waived by a person. 14. Subba Rao J., as he then was, in Dhirendra Nath v. Sudhir Chandra, [1964]6SCR1001 laid down the test to determine what is an irregularity and what is a nullity in the words of the learned Judge- The safest rule to determine what is an irregularity and what is nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot it is a nullity. A waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived for consent cannot give a Court jurisdiction where there is none. Where such jurisdiction is not wanting a directory provision can be waived. But a mandatory provision can only be waived if it is not conceived in the public interest but in the interest of the party that waives it. In that case the learned judge approved what Mookerjee, J., said in Ashutosh Sikdar v. Behari Lal Kirtania (1908) ILR 35 Cal 61 at p. 72 and Justice Coleridge said in Holmes v. Russell (1841) 9 Dowl 487, Mookerjee, J., in Ashutosh Sikdar' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rule violated is one laid down in the interest of the parties but not, where it is I-aid down in the interest of public policy. The circumstance that breach of audi alteram partem is capable of being waived cannot therefore deflect us from the view we are taking. To hold that breach of audi alteram partem is a mere irregularity like any other defect in procedure, rendering an order or decision merely voidable by the Court in a properly constituted proceeding would be to ignore the great importance and sanctity which is attached to this principle. Such an attempt to pull down this vital and principle from the high pedestal basic which several generations of English Judges have assigned to it cannot meet with our approval and we must refuse to give our assent to it. The learned Chief Justice in the East India Company's case was not considering a development scheme like the one with which we are now concerned. That was a case where direction was given to the Liquidator to sell property under Section 457(1) of the Companies Act. No such direction could be given unless summons for directions was taken out by him and notice of the summons was given to the petitioning creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have already been notified by the publication made in accordance with the requirements of sub-rule (1) of Rule 21. Individual notices were contemplated under the old sub-rule (3) for the reason that at the stage of draft scheme, the Town Planning Officer would have come to know about persons affected or persons interested. Persons interested or persons affected are entitled to put in their claims under Section 69 for compensation. It is for the reason that claims would have to be put in by individuals in response to the publication made in accordance with Rule 21 (1) that the provision for special notice under sub-rule (3) (old) was contemplated. It cannot, therefore, be said that failure to serve a special notice upon persons interested or persons affected constitutes an essential element or factor which would nullify a scheme finally approved by the Government or render it void. So we have to distinguish a minimum essential element or factor or feature from the others. The mere fact of failure on the part of the Town Planning Officer to comply with such other comparatively non-essential requirements cannot render his decision as one rendered without jurisdiction or lacking in ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i)~ which mention the words after notice given by the Town Planning Officer in the prescribed manner and the second, proviso where only a substantial variation required a hearing of objections holding that for any variation such individual notice was mandatory. But the question still remains as ta whether it could have perforce nullifying consequences when the Legislature in the second proviso makes it clear that only substantial variations would necessitate hearing of such objections. Further it is to be noticed that even after the scheme becomes a part of the Act under Section, 51 (3), remedies are provided for variations or revocation in Sections 56, and 57 by the Act. Therefore, in the light of the entire scheme of the Act and the Rules prescribing procedure, the right to individual, notice under old sub-rule (3) cannot be held to be a minimum essential requirement touching the jurisdiction of the Town Planning Officer so as to nullify the final scheme in spite of the protective legislative device in Section 51 (3). 22. The language of new sub-rule (3) of Rule 21 does not require any special notice to be issued. It only enjoins that the Town Planning Officer shall publish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 24. For understanding the true scope and effect of substituted sub-rule (3) of Rule 21, we must also read sub-rule (4) of Rule 21 which makes it obligatory on the part of the Town Planning Officer to give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any. A combined reading of sub-rules (3) and (4) makes it clear that such of the persons who communicate their objections in writing under sub-rule (3) are to be afforded sufficient opportunity of stating their views and that no decision shall be given until the representations made by or objections raised by the persons affected are duly and properly considered by the Town Planning Officer. It is only an additional opportunity prescribed to ensure a proper and fair hearing being given to the persons affected at the stage of the consideration of the draft scheme. Sub-rule (3) is only in the nature of an additional safeguard or additional opportunity of being heard of persons who are affected. Failure to comply with this obligation will not amount to breach of the doctrine of audi alteram partem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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