JASWANTSINGH MATHURASINGH Vs. AHMEDABAD MUNICIPAL CORPORATION

JUDGEMENT

(1.) This appeal by special leave is against the judgment of the Division Bench in L.P.A. No. 114 of 1977, dated May 4, 1977 of the Gujarat High Court. The lone question for decision in this appeal is whether the compliance of sub-rules (3) and (4) of Rule 22 of Bombay Town Planning Rules 1955 for short 'the Rules'is mandatory and whether the violation thereof invalidates the final Town Planning Scheme. In a suit laid by the appellants . the trial Court found as a fact that the appellant, a,partnership firm, was continuing in possession of the old premises bearing M. C. No. 352/(S) No. 163-A-2 from the year 1940 as a direct tenant of Ahmedabad Panjara Pole, Barartha, a registered trust, the owner of the plot of land of survey No. 163 situated in Wart No.'C' in front of town hall in Sher Kotda 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 in 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 93 out of the original Plot No. 59 of the Town Planning Scheme No. 16, Sher Koida Ahmedabad. (Survey No. 163). The Town Planning Officer did not issue special notice as required under sub-rule (3) and opportunity provided for under subrule (4) of R. 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 respondent not to enforce the reconstituted plot Nos. 82 and 83 until due procedure is followed. The learned single Judge in First Appeal No.669/ 76 allowed the appeal along with other bunch of appeals holding that the decision in Dungarlal Harichand v. State of Gujarat (1976) 17 Guj LR 11 52 ratio applies to the facts in this case and the appellants are not entitled to special notice required under sub-rule (3) and opportunity, under subrule (4) of R. 21. The failure to comply therewith does not vitiate nor render the draft scheme or the final scheme a nullity Accordingly the learned single Judge allowed the appeal, set aside the decree of the trial Court and dismissed the suit. On Letters Patent Appeal, the Division Bench confirmed the same. Thus this appeal.

(2.) Shri Mehta, the learned senior Counsel for the respondents claimed that special notice required under sub-rule (3) and the opportunity under sub-rule (4) of R. 21 were not mandatory. Hence they were not complied with. Since sub-rule (3) of R. 21 is.only an additional advantage, it is not indispensable. At any rate it could be waived. The framing of the town planning scheme and its final approval is for the benefit of the residents of the local authority as an amenity provided therein to the general public i.e. construction of General Post Office. The interest of the general public outweighs the individual interest. Therefore, sub-rule (3) of R. 21 is not mandatory.

(3.) A bird's eye view of the statutory scheme and its effect on the right and interest, of the owner or tenant would point poignantly that the contention is devoid of substance. The Act as modified and adapted by the Gujarat Adaptation of Laws (State Amendments) Order 1963 as amended from time to time was to ensure that the town planning' schemes are made in a proper manner and execution thereof is made effective. The local authority has to prepare a development plan (Master Plan) for the entire area within its jurisdiction. S. 2(2) defines development plan means a plan for the development and redevelopment or improvement of the entire area within the jurisdiction of a local authority prepared under S. 3. The local authority has been defined under S. 2(4) to mean Municipal Corporation or Municipality etc. S.2(5) defines owner in an inclusive way saying that any person for the time being receiving or entitled to receive........ the rent or profits of the property in connection with which it is used. S. 2(3) defines "plot" to mean "a continuous portion of land held by one ownership". S. 2(9) defines "reconstituted plot" to mean a plot which is in any way altered by the making of a town planning scheme. S.2(10) defines "scheme" to include a plan relating to a town planning scheme". S. 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 subsec. (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. S. 7 prescribes the particulars of the Master Plan.