MANGALJIBHAI ROOPAJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These petitions raise a short question as to the constitutional validity of sec. 54 of the Bombay Town Planning Act 1954 The facts giving rise to the petitions in so far as they are material for the determination of the main controversy between the parties are almost identical and it would therefore be sufficient if we set out the facts relating only to one petition namely Special Civil Application No. 604 of 1971 which was argued as the main petition.

(2.) The petitioners in Special Civil Application No. 604. of 71 are lessees of certain lands belonging to a public trust called Karna Muktheswar Mahadeo Trust. By a resolution dated 18th April 1927 the Borough Municipality of Ahmedabad declared its intention to make a town planning scheme in respect of certain area which included the lands which are at present in the possession of the petitioners. The declaration of intention to make the town planning scheme was published on 28th April 1927 and the Borough Municipality then applied to the Provincial Government for sanction for the making of such scheme. The Provincial Government for reasons difficult to imagine took a period of about three years to decide whether sanction to the making of the town planning scheme should be granted or not and ultimately by a notification dated 22 April 1930 sanctioned the making of the town planning scheme. The Borough Municipality then prepared a draft scheme on 8th April 1931 and published it on 16th April 1931. The objections to the proposals in the draft scheme were filed within one month from the date of publication of the draft scheme and the Borough Municipality considered those objections and modified the draft scheme in the light of the objections by a resolution dated 9th March 1934. The Borough Municipality then requested the Collector by a letter dated 17th April 1934 to obtain the sanction of the Provincial Government to the draft scheme as modified. The Provincial Government again slept over the matter for about eight years and ultimately sanctioned the draft scheme by a resolution dated 7 August 1942. The Provincial Government also by the same resolution appointed one G. B. Soparkar as Arbitrator to decide the matters set out in sec. 30 of the Bombay Town Planning Act 1915 (hereinafter referred to as the old Act) which was the law in force at the relevant time and to prepare the final scheme for being forwarded to the Provincial Govern ent. Very little progress was however made by G. B. Soparkar and before he could complete his task he was succeeded by another Arbitrator and ultimately one J. R. Mankad came to be appointed as the Arbitrator. Whilst the proceedings were pending before him the Bombay Town Planning Act 1954 (hereinafter referred to as the new Act) was enacted and it came into force on 1st April 1957. Sec. 90 sub-sec. (1) of the new Act repealed the old Act but sub-sec. (3) of sec. 90 continued the proceedings pending before J. R. Mankad who now became the Town Planning Officer under the new Act J. R. Mankad as the Town Planning Officer thereafter gave his decision on 12th March 1964 on the various matters referred to in sec. 32 sub-sec. (1) and so far as the decision related to the matters arising under Clauses (v) (vi) (viii) (ix) (x) and (xiii) those who were aggrieved by the decision preferred appeals against the same to the Board of Appeal constituted under sec. 35. The Board of Appeal decided the appeals after hearing the appellants and sent a copy of its decision to the Town Planning Officer and the Town Planning Officer made variations in the Town Planning Scheme in accordance with such decision and forwarded the final scheme to the State Government for sanction The State Government sanctioned the final scheme by a notification dated 21st July 1965 and directed in the notification that the final scheme shall come into force from 1st September 1965. The lands in the possession of the petitioners were allotted or reserved for construction of a road under the final scheme and therefore being lands required by the Municipal Corporation they vested absolutely in the Municipal Corporation free from all encumbrances under sec. 53 clause (a). The Municipal Corporation thereafter issued a notice to the petitioners under sec. 54 read with Rule 27 of the Bombay Town Planning Rules 1955 calling upon the petitioners to hand over possession of the lands occupied by them. This led to the filing of a civil suit by the petitioners challenging the validity of the notice issued against them and on the civil suit being dismissed and the appeal against the decision of the civil suit also being rejected the petitioners filed Special Civil Application No. 604 of 1971 calling in question the validity of the same notice. Similar petitions were also filed by other occupiers of lands which were allotted or reserved for public purpose under the final scheme and to whom notices for handing over possession were issued by the Municipal Corporation.

(3.) There were in the main two grounds on which the validity of the impugned notices was challenged on behalf of the petitioners and they were;