DUNGARLAL HARICHAND Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special Civil Application has been referred to a Full Bench by a Division Bench consisting of P. N. Bhagwati C. J. (as he then was) and M. U. Shah J. as in their opinion the two decisions rendered by this Court in KAUSHIKPRASAD V. AHMEDABAD MUNICIPAL CORPORATION (1970) 11 G.L.R. 993 AND MOHANLAL JESINGBHAI V. P. J. PATEL (1970) 11 G.L.R. 1035 to which one of them (Bhagwati C. J.) was a party required reconsideration as the attention of the Court was not drawn to certain provisions and particularly sec. 56 of the Bombay Town Planning Act which seemed to suggest that the view taken by them may not be correct.

(2.) The relevant facts leading to the filing of this petition may briefly be stated The Ahmedabad Municipal Corporation by a notification dated July 19 1951 declared its intention to make a Town Planning Scheme under sub-sec. (1) of sec. 9 of 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 months 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 Government in exercise of its powers conferred by subsec. (6) of sec. 9 of the Act was pleased to sanction the making of such scheme subject to the condition that the lands situated within the red line verge on the said plan should be excluded from the said scheme. The draft scheme was notified on December 2 1954 by the Ahmedabad Municipal corporation and it recited that the draft Town Planning Scheme Ahmedabad No. 16 was prepared and published for inspection. In this publication too the Municipal Commissioner invited objections to the draft scheme from any person affected by such scheme for consideration of the Local Authority. The draft Scheme was approved by the Government of Bombay by its Resolution of November 8 1956 and the Arbitrator was appointed by notification of February 20 1957 Finally the Government of Gujarat the successor Government to the Government of Bombay published the notification dated June 10 1970 under the Bombay Town Planning Act 1954 (hereinafter referred to as the new Act). The Government of Gujarat in exercise of the powers conferred by sec. 51 of the new Act sanctioned the final scheme subject 10 the modifications enumerated in the Schedule appended thereto. The Scheme was directed to be kept open for inspection by the public at the office of the Municipal Corporation for the City of Ahmedabad during office hours on all working days. The Government also fixed the first day of September 1970 as the date on which all the liabilities created by the Scheme shall take effect and the final scheme shall come into force. As a result of the publication of the final scheme by the Government the Corporation informed the Saraspur Mills the owner of the premises bearing Municipal Census No. 365/9 to handover possession of the same. That led to the Saraspur Mills Limited writing to the petitioner its tenant informing him of the notice issued by the Municipal Corporation and requiring him to vacate the premises so as to enable the Municipal Corporation to take possession. It is this letter of the owner of the premises that led to the filing of this Writ Petition by the petitioner.

(3.) The petitioner challenged the final scheme published by the Government on several grounds including the one that sec. S4 of the new Act is unconstitutional and ultra vires Articles 14 and 19(1)(f) of the Constitution. This challenge 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 citizens right to move the Court for enforcement of the rights under Articles 14 19 and 21. The challenge is now confined only to the petitioners 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 petitioners 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 Rules to ascertain the scheme and object of the Act.