PRAKASH AMICHAND SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal by Special leave is preferred against the judgment dated September 3, 1976 in Special Civil Application No. 1501 of 1976 on the file of the High Court of Gujarat filed under Art. 226 of the Constitution of India in which the appellant had challenged the constitutional validity of the Town Planning Scheme No. VIII (Umarwada) in respect of certain lands situated at Surat City in the State of Gujarat, published under the provisions of the Bombay Town Planning Act, 1954 (hereinafter referred to as 'the Act') in so far as the said scheme pertained to the land of which the appellant was the lessee, alleging inter alia that it was violative of Arts. 14, 19(1)(f) and 31 of the Constitution of India.

(2.) The land in question originally belonged to one Ladli Begum. She granted a lease in, respect of the said land in favour of a company called Nawab of Belha Spinning, Weaving and Manufacturing Mills Ltd. under a document dated November 15, 1882 for a period of 99 years with effect from November 1, 1881 with a right of renewal for a further period of 99 years. The land was described as the land bearing Survey Nos. 75, 81, 83, 84 and 86 measuring in all 49 acres 22 gunthas. The company which had taken the land on lease executed a sub-lease in respect of 38 acres 2 gunthas out of the entire plot of land on March 29, 1884 in favour of ore Dr. Nassurwanji N. Khambata for the residuary period of 99 years without the right of renewal. This sublease was to expire on October 31, 1980. Under a document dated April 30, 1928 Surat Parsi Panchayat Board acquired the lease in respect of the entire 38 acres 2 gunthas, referred to above, from a lady who was the daughter of one Rustamji who had acquired the rights of Dr. Nassurwanji N. Khambata. On May 24, 1937 the appellant purchased the right, title and interest of the head lessee, i.e., Nawab of Belha Spinning, Weaving and Manufacturing Mills Ltd., in an auction sale held in the course of liquidation proceedings of the said company. The appellant thus became the head lessee of the entire plot of land with the rights specified in the document dated November 15, 1882, referred to above. Surat Parsi Panchayat Board which had acquired the right of the sub-lessee in respect of 38 'acres 2 gunthas created a further sub-lease in respect of 34 acres 4 gunthas out of the 38 acres 2 gunthas in favour of the Surat Municipal Corporation under a document dated March 30, 1963 retaining the sub-lessee's right in the remaining land.

(3.) The Surat Borough Municipality passed a resolution on August 2, 1963 to prepare a Draft Development Plan for the entire area within the municipal limits of Surat City in accordance with the Development Regulations issued by it with the object of checking haphazard growth of the city. Pursuant to the said resolution, a notification was issued on April 3, 1965 under S. 4 of the Land Acquisition Act, 1894 to acquire a portion of the entire plot of land admeasuring 34 acres 4 gunthas in Survey Nos. 75, 81 and 82 for the purpose of setting up an industrial estate by the Surat Borough Municipality, Surat which involved the shifting of Municipal Workshops and Central Stores.. On June 22, 1965 the Surat Borough Municipality made a declaration declaring its intention to prepare a Town Planning Scheme, being the Town Planning Scheme No. VIII of Umarwada in respect of the locality called Umarwada under S. 22 of the Act. The Municipality however could not make and publish the draft scheme within 12 months from the declaration of its intention as required by S. 23(1) of the Act. The State Government, however, by its Notification dated August 31, 1966 in exercise of its power under the proviso to S. 23(1) extended the period. for making and publishing the draft scheme by six months. The Municipality could not make and publish the draft scheme even within that extended period of six months. Then under sub-section (2) of S. 23 of the Act the Collector of Surat was authorised by the State Government to make and publish the draft scheme within nine months from December 26, 1966. Accordingly, the Collector of Surat by Notification dated July 4, 1967 published a' draft scheme. In the draft scheme as made and published by the Collector, the land admeasuring 1,37,961 sq. metres out of the aforesaid land of which the appellant was the head lessee was shown as reserved for the Surat Municipality. The appellant filed his objection to the proposed reservation pointing out therein that he himself needed the land for expansion of his business and for construction of homes for his employees. He also stated that the Surat Municipality had acted mala fide in securing the reservation of such a large piece of land in its favour. The Government of Gujarat after overruling the objection ultimately granted sanction to the draft scheme prepared by the Collector of Surat by its Notification dated May 10, 1968. On June 7, 1968 one Shri N. R. Bhambhani was appointed as the Town Planning Officer to finalise the scheme. He was succeeded by Shri M. G. Makwana who was appointed as the Town Planning Officer by the Government on February 28, 1969. When the Town Planning Officer entered upon his functions under S. 31 of the AM the appellant again filed Iris objection to the reservation of his land for the alleged purpose of the Municipal Corporation. In addition the appellant also claimed compensation in respect of the said 38 acres 2 gunthas at the rate of Rs. 50/- per sq. yard alleging that the land in the vicinity had been sold at that rate and claimed towards his share two-thirds of the total compensation. Then on June 30,1970 the Town Planning Officer issued a notice expressing his intention to acquire the land in question admeasuring 1,37,961 sq. metres. On November 4,1971 he determined the compensation payable in respect of the said land at the rate of Rs. 2.40 paise per sq. metre. Aggrieved by the said decision, the appellant filed an appeal before the Board of Appeal. The Board of Appeal held that disputes regarding compensation of lands taken away for the purpose of the scheme being not within the scope of S. 33(1)(xiii) of the Act the decision of the Town Planning Officer on those questions was not appealable under S. 34 of the Act. The Board of Appeal, inter alia observed that it was not for the Board to say anything regarding the propriety of the action taken by the Town Planning Officer in reserving the entire plot of land admeasuring 1,37,961 sq. metres, in which the appellant was interested, for the purpose of the Surat Municipality. It also held that on the question of apportionment of the compensation no appeal lay to it. Aggrieved by the decision of the Board, the appellant filed a writ petition before the High Court of Gujarat out of which this appeal arises.