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PETITIONER: JASWANT SINGH MATHURA SINGH AND ANR.

       Vs.

RESPONDENT: AHMEDABAD MUNICIPAL CORPORATION AND ORS.

DATE OF JUDGMENT01/10/1991

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SHETTY, K.J. (J)

CITATION:  1991 AIR  385            1990 SCR  Supl. (3) 354  1991 SCC  (1) 362        1990 SCALE  (2)1152

ACT: Bombay Town Planning Rules, 1955: Rules 21(3) and (4).     Town  Planning Scheme- Procedure to be followed by  Town Planning  Officer-Compliance  with Rule 21(3) and  (4)  held mandatory-Non-compliance  vitiates the validity of the  Town Planning  Scheme-  Tenant or sub tenant in possession  of  a tenement in the Town Planning Scheme-Held a person interest- ed and entitled to notice under sub-rule (3) and opportunity under sub-rule (4)-Purpose of Rule 21(3) and (4)-Explained. Principle of ’Waiver’ explained. Administrative Law - Natural justice.     Deprivation  of  property - Imposition  of  liability  - Prior notice and opportunity should be provided to  affected person  -- Rules 21(3) and (4) of the Bombay  Town  Planning Rules,  1955 subserve the principle of Natural, Justice  and the basic concept of fair and just procedure.     ’Shall’ - Connotation of - Whether mandatory or directo- ry  - Meaning shall be ascertained in the light of  legisla- tive intent, the context in which it is couched, the  conse- quences it produces and the purpose it seeks to serve.

HEADNOTE:     The  appellant was in possession of a plot as a  tenant. Pursuant  to Town Planning Scheme framed by the  respondent- Corporation  under  the Bombay Town Planning Act,  1955  the said  plot was re- constituted i.e. the plot was altered  by the  making of the Town Planning Scheme. The respondent  was injuriously  affected by the said scheme because it has  the effect of terminating his possession and adversely  affected his business in the demised premises. However, before  fina- lising  the scheme the Town Planning Officer neither  issued special  notice to the respondent a required under  sub-rule (3) nor provided him an opportunity as provide 227 under  sub-rule (4) of Rule 21 of the Bombay  Town  Planning Rules,  1955. The appellants filed a civil suit  challenging the action and the Trial Court issued a permanent injunction restraining  the respondent-Corporation from  reconstituting the plot until due procedure was followed.     On appeal by the Corporation a Single Judge of the  High Court  allowed  the appeal and set aside the decree  of  the Trial  Court and dismissed the suit. The Single  Judge  fol-

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lowed the decision of the Full Bench in Dungarlal  Harichand v.  State of Gujarat & Ors. (1976) 17 G.L.R.,  1152  holding that  the  appellants were not entitled  to  special  notice under  sub-rule (3) and opportunity under sub-rule  (4)  and 2that non-compliance with the said rule does not vitiate the Planning  Scheme. The decision of the Single Judge was  con- firmed in Letter Patent appeal by the Division Bench of  the High Court.     In  tenant’s  appeal to this Court it was  contended  on behalf  of  the Respondent-Corporation that  (i)  compliance with  sub-rule  21(3) & (4) was not  mandatory;  (ii)  Since sub-rule  21 (3) is only an additional advantage It is  dis- pensable and could be waived; (iii) the framing of the  Town Planning  Scheme is for the benefit of the residents of  the Local authority as an amenity provided therein to the gener- al  public  i.e. construction of General  Post  Office,  the interest  of  the general public  outweighs  the  individual interest.  Therefore, sub-rule 21(3) is not mandatory;  (iv) the  use of the word ’shall’ in rule 21(3) may be  construed as directory and not as mandatory. Allowing the appeal, this Court,     HELD: 1. Under Section 105 of Transfer of Property  Act, a  lease  creates right or an interest in enjoyment  of  the demised property and a tenant or a sub-tenant is entitled to remain in possession of the demised property until the lease is  duly terminated and eviction takes place  in  accordance with law. Therefore, a tenant or a sub-tenant in  possession of a tenement in the Town Planning Scheme is a person inter- ested within the meaning of Rules 21(3) & (4) of the  Rules. But he must be in possession of the property on the  crucial date  i.e.  when  the town plan scheme is  notified  in  the official gazette. Every owner or tenant or a sub-tenant,  in possession on that date alone shall be entitled to a  notice and  opportunity.  Accordingly, appellants are  entitled  to notice under sub-rule (3) and a 228   reasonable       opportunity       under       sub-rule(4) thereof.[234H;235A-B;235 E]      2. A conspectus of the statutory scheme brings out  the fact that the Town Planning Officer before making the  final scheme and submitting it to the local authority is  required to follow the procedure prescribed by the Act and the Rules. At  the relevant stages, he is required to issue  notice  to the affected person. [234 F-G]      2.1 A reading of s. 32 of the Bombay Town Planning Act, 1955 read with Rule 21(3) makes it abundantly clear that the Town  Planning Officer is to give notice of at least 3  days in  the prescribed manner to the affected persons to  submit objections  or views; affected persons are to be given  ade- quate opportunity under rule 21(4) to respond and thereafter the Officer is to demarcate the area allotted to or reserved for  public purposes or for purpose of the  local  authority and  the  reconstituted plots to be allotted to  persons  in ownership  with  the shares of such persons in  common  plot etc. [236 G-H]      3.  Rule  21(3) speaks of special notice  of  at  least three days duration. It is inconsonance with and in  compli- ance  of the principles of natural justice. The  legislature thus made a distinction between the general notice envisaged in sub-rule (1) of Rule 21 and special notice under sub-rule (3) of Rule 21, which was in addition to the former. [237-C]      3.1 The purposes of clauses (3) and (4) of Rule 21  are obvious  and  the consequences that would  ensue  are  self- evident.  The  issuance  of notice under  sub-rule  (3)  and

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giving of sufficient opportunity under sub-rule (4) are self evident  to  subserve  the basic concept of  fair  and  just procedure. These sub-rules subserve the principles of  natu- ral Justice to avoid arbitrariness offending Article 14  and to  be  Just and fair procedure satisfying  the  mandate  of Article 21. [237- C,E]           4.  It  is  settled law that  before  depriving  a person of his property or   imposing any further  liability, the  principle of natural justice require prior  notice  and reasonable  opportunity  to him to put forth  his  claim  or objections. [237-B]       4.1  Since the non-compliance with issuance of  notice and  giving  of  sufficient opportunity  contemplated  under sub-rules (3) and (4) of Rule 21 229 injuriously  affects the right to property of the  owner  or interest of the tenant or sub-tenant, as the case may be, it shall be construed to be mandatory and not directory. There- fore, the issuance of special notice of at least three clear days  duration  and  giving sufficient  opportunity  to  the person  affected  to put forth his views of the  scheme  are mandatory  and non-compliance thereof vitiates the  validity of the final scheme. [237 H; 238 A; 237 E]     Kaushikprasad   Chandulal  Mahadevia  &  Anr.   v.   The Ahmedabad  Municipal Corporation and Ors., (1970) 11  G.L.R. 993;  Mohanlal  Jesinghbhai v. PJ. PateI,  Town  Development Officer,  Ahmedabad Municipal Corporation & Ors,  (1970)  11 G.L.R. 1035, approved.     Dungarlal  Hanchand v. State of Gujarat &  Ors.,  (1976) 17 G.L.R. 1152, disapproved.    5.  The appearance of ’shall’ is not conclusive, nor  per se  connotes  its  mandatory contour. Its  meaning  must  be ascertained  in the light of the  legislative intent in  its employment, the context in which it was couched,  the conse- quences it produces the result it effected and above all the purpose  it seek to serve, would all be kept in  view.  From the fact situation the courts are to cull out the  intention whether  the  construction to be put up would  subserve  the purpose  of  the legislative intent or tend  to  defeat  it. Public interest, is always, a paramount consideration.  [237 F-G]     6.  The principle of Waiver connotes issuance of  notice and  non-response thereto. Everyone has a right to waive  an advantage  or  protection which law seeks to give  him.  Un- doubtedly,  if a notice is issued and no  representation  is made  by either the owner, tenant or a sub-tenant, it  would amount  to waive the opportunity and such person  cannot  be permitted to turn round, after the scheme reaches  finality, to say that :here is non-compliance of sub-rules (3) and (4) of  Rule 21. It would amount to putting premium on  dilatory and dishonest conduct. [238 B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1354 of 977.     From the Judgment and Order dated 4.5.1977 of the  Guja- rat High Court in Letters Patent Appeal No. 114 of 1977. P.H. Parekh and Ms. Shalini Soni for the Appellants. 230     T.U. Mehta, H.S. Parihar, Kuldeep S. Parihar, Mrs. Manik Karanawala  (N.P.),  Mrs.  Nandini Gore  and  Anip  Sachthey (N.P.) for the Respondents. The Judgment of the Court was delivered by

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   K. RAMASWAMY, J. 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 one  ques- tion  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.  2 No. 352/3 (S) No. 163-A-2 from the year 1940 as a  directte- nant  of  Ahmedabad  Panjara Pole,  Barartha,  a  registered trust,  the  owner  of the plot of land of  survey  No.  163 situated in Ward No. ’C’ in front of town hall in Sher  Kota 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  pur- poses. The Town Planning Scheme was formulated by the munic- ipal corporation 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 83  out  of  the original  plot  No. 59 of the Town Planning scheme  No.  16, Sher Kota Admn. (Survey No. 163). The Town Planning  Officer did not issue special notice as required under sub-rule  (3) and opportunity provided for under sub-rule (4) of Rule  21. The appellants along with others filed civil suits challeng- ing  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 alongwith other bunch of  appeals holding that the decision in Dungarlal Harichand v. State of Gujarat     & Ors., 1976 (17) G.L.R. 1152 (Full Bench) 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 sub-rule (4) of Rule 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  Letter Patent  Appeal, the Division Bench confirmed the same.  Thus this appeal. 231     Shri Mehta, the learned Senior Counsel for the  respond- ents claimed that special notice required under sub-rule (3) and  the opportunity under sub-rule (4) of Rule 21 were  not mandatory. Hence they were not complied with. Since sub-rule (3)  of Rule 21 is only an additional advantage, it  is  not dispensable. 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. Instruc- tion  of  General Post Office. The interest of  the  general public  outweighs the individual interest.  Therefore,  sub- rule (3) of Rule 21 is not mandatory. 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

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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. Section  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 section 3. The local authority has been defined  under section  2(4) to mean municipal corporation or  municipality etc.  Section 2(5) defines owner in an inclusive lay  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.  Section  2(3)  defines "plot" to mean "a continuous portion of land held     by one ownership".  Section  2(9) defines "reconstituted  plot"  to mean  a plot which is in any way altered by the making of  a town  planning  scheme. Section 2(10)  defines  "scheme"  to include "a plan relating to a town planning scheme". Section 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 sub-section (1) of s. 4 the  local authority is authorised to make a declaration of its  inten- tion  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. Section 7 prescribes the particulars of the Master Plan.     Chapter  III prescribes the making and the  contents  of the  town planning scheme. Section 18 provides that a  local authority may make one or 232 more town planning schemes for the area within its jurisdic- tion  or in part thereof, regard being had ’to the  proposal in the final development plan. Sub-section (2) provides that such  town planning scheme ’may make provisions" for any  of the following matters:-     (a)  ’the laying out" or "relaying out of land",  either vacant or "alreadybuilt upon";    (b) .........  (omitted being irrelevant);     (c)  lay  out  of new streets  or  roads,  constructions diversion,  extension, alteration, improvement and  stopping up of streets, roads and communications;     (d)  the  construction,  "alteration"  and  "removal  of buildings", bridges and other structures;   (e)  "the allotment" or "reservation" of land  for  roads, open spaces, gardens, recreation grounds, school, market, green belts and dairies, transport facilities and public purposes of all kinds;     (f) drainage inclusive of sewerage, surface or  sub-soil drainage and sewage disposal; (g) lighting; (h) Water supply; (i) Omitted.     (j)  "imposes" sub-section (2) ’conditions and  restric- tions"  in regard to the "open space to be maintained  about buildings", the percentage of building area for a plot,  the number,  size, height and character of buildings allowed  in specified  areas, the purposes to which buildings or  speci- fied areas may or not be appropriated, "the sub-division  of plots", the discontinuance of objectionable users of land in any  area in reasonable periods, parking space  and  loading and unloading space for any building or the sizes of projec-

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tions and advertisements signs. (k) & (1) Omitted.     In  Chapter  IV under sub-sec. (1) ors.  22,  the  local authority may by a resolution declares its intention to make a town planning scheme in respect of the whole or any part of the land which is in the  course of development 233 or likely to be used for building purposes or already  built upon.  Within 21 days from the date of such  declaration  it shall  publish it in the prescribed manner (the details  are not relevant here) and shall despatch a copy thereof to  the State Govt. Under sub-section (1) of s. 23, within 12 months from  the  date of such declaration or extended  period  not exceeding  six  months,  the draft scheme for  the  area  in respect of which the declaration has been made by a  notifi- cation  in the official Gazette, shall be approved.  Section 25  envisages specification of the particulars in the  draft scheme.  Clause  (a) "specifies the area",  "ownership"  and "tenure  of  each original plot"; (b) the land  allotted  or reserved  under sub-clause (a) of Clause (2) of s.  18;  (c) "the  extent" to which it is "proposed to alter  the  bound- aries of original plots" etc. Under section 26 "the size and shape  of every reconstituted plot" shall be determined,  so as  to  render it suitable for building purposes  etc.  with further  particulars enumerated in sub-sections (2) and  (3) thereof.  Section  27  gives an opportunity  to  any  person effected by such scheme to submit objections, if any, within six months from the date of publication of the draft scheme. The  local authority shall consider such objections;  it  is empowered  to  modify such scheme as it thinks  fit  in  the light  of the objection and then to submit it to  the  State Govt. within four months from the date of its publication in the  official Gazette as required under section  28(1).  The State  Govt. within six months from the date of the  submis- sion of the draft scheme by the local authority original  or with modification shall sanction such scheme with or without any  further modification and publish the same in the  offi- cial Gazette with such conditions as it may think fit.  Such scheme  shall be open to the inspection of the public  under s. 28(3).     Under  section 31(1), within one month from the date  of the  publication  of  the  draft  sanctioned  town  planning scheme, the State Govt. shall appoint a Town Planning  Offi- cer who is to make final scheme while performing the  duties imposed on him under s. 32 in accordance with the  procedure prescribed  in s. 32 and the Rules. Under section  32  after notice  given in the manner, it defines and  demarcates  the areas  allotted  to, or reserved, for a public  purposes  or purpose of the local authority and the reconstituted  plots; indicate the person to be allotted of ownership in reconsti- tuted plot in common and the shares of such persons, etc. He has  also  to fix the difference between the  total  of  the value  of the original plot and the total of the  plots  in- cluded in the final scheme etc. He has also to calculate  or to estimate the compensation payable on each plot used;  the contribution to be levied on each plot used, or reserved for a  public purpose; of use partly to the owner and partly  to the  public; to determine the amount of exemption,  if  any, from  payment of the contribution of the lands  occupied  by religious and charitable purposes. The contribution of the 234 costs in the final scheme is also enjoined to be  calculated and  to  determine  the liabilities  etc.  as  indicated  in Clauses (vi) to (xi). Clause (xii) provides for the total or

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partial  transfer  of any right in any original  plot  to  a reconstituted  plot  or provide for the  extinction  of  any right in an original plot in accordance with the  provisions contained  in  s. 68 and then has to draw plan  as  provided under  clause (xiv) in the final scheme in  accordance  with the draft scheme. Under the proviso it is empowered to  make variation from the draft scheme the details of which are not necessary  but  suffice to state that under the  proviso  no substantial  variation  shall be made by the  Town  Planning Officer  without  the  consent of the  local  authority  and without  hearing any objections which may be raised  by  the owner concerned. Thereafter, the decision of the Town  Plan- ning  Officer subject to an appeal if any, the  State  Govt. under section 34, shall make it final and binds the parties. The  final  scheme shall be published, after  following  the procedure in Rule 21(1) to (8), as per sub-rule (9). Section 54  provides  that on and after the day on which  the  final scheme comes into force any person continuing to occupy  any land  which  he is not entitled to occupy  under  the  final scheme  shall  be ejected summarily as  per  the  prescribed procedure  and  local authority shall also  be  entitled  to remove, pull down or alter any building or other work in the area  included in the scheme under section 55  after  giving notice  in the prescribed manner and in accordance with  the procedure of the scheme. Section 56 gives power to the State Govt. to vary scheme on grounds of irregularity or infirmity in  making the scheme. Under section 60 every party  to  any proceeding  before the Town Planning Officer shall be  enti- tled to appear either in person or by his recognized agent.     Though  the  challenge in the appeal is  confined  to  a limited  point, as will presently appear, we have given  the conspectus  of  the statutory scheme to bring out  the  fact that  the  Town  Planning Officer before  making  the  final scheme and submitting it to the local authority is  required to follow the procedure prescribed by the Act and the Rules. He  is entitled to alter the plots, make  reconstitution  of plots,  determine  the persons entitled  to  reallotment  on reconstitution;  to  reserve the area  for  public  purpose; determine  the compensation; liability of the owner to  con- tribute  the amount; to provide amenities etc. At the  rele- vant stages, he is required to issue notice to the  effected person.     The question is whether the tenant or a sub-tenant is  a person  interested and is entitled to notice. It is  obvious that  under  s.  105 of Transfer of Property  Act,  a  lease creates  right  or an interest in enjoyment of  the  demised property and a tenant or a sub-tenant is entitled to  remain in 235 possession  of the demised property until the lease is  duly terminated and eviction takes place in accordance with  law. Therefore, a tenant or a subtenant in possession of a  tene- ment  in  the Town Planning Scheme is  a  person  interested within the meaning of Rules 21(3) & (4) of the Rules. But he must  be in possession of the property on the  crucial  date i.e.  when the town plan scheme is notified in the  official gazette.  Every owner or tenant or a sub-tenant, in  posses- sion  on that date alone shall be entitled to a  notice  and opportunity.     Undoubtedly,  the Town Planning Scheme was published  on July  1, 1951. There was inordinate delay in  implementation of the scheme for 30 long years. Though Shri Parekh, learned counsel  for the appellants, contended that a better  scheme could  be formulated for construction of a post office  upon the  reconstituted plot No. 82 by leaving out the  shops  in

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question;  we are not inclined to embark upon an enquiry  in that  regard. The Act gives power to the local authority  to have the matter investigated into and to formulate its  town planning  scheme;  its approval is by the  State  Govt.;  an expert  officer, namely, Town Planning Officer,  thereafter, is  appointed to finalise the scheme with all local  assist- ance.  He, being an expert on the site, is entitled to  look into  all  relevant aspects and to finalise the  scheme  for reconstitution  of the plot or alteration of the  boundaries etc.     Appellants are entitled to notice under sub-rule (3) and a  reasonable opportunity under sub-rule (4)  thereof.  Rule 21(1)  to (8) lay down the procedure to be followed  by  the Town Planning Officer and it reads thus:               21. Procedure to be followed by Town  Planning               Officer:-               The Town Planning Officer shall give notice to               the date on which he will commence his  duties               and shall state therein the time, as  provided               in  rule  30, within which the  owner  of  any               property  or rights which is  injuriously  af-               fected  by  the making of  the  town  planning               scheme  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  promi-               nent  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.               (3)  Special  notice of at least  three  clear               days shall be served upon the person interest-               ed in any plot or in any particular  comprised               in the scheme, before the Town Planning  Offi-               cer,               236               proceeds to deal in detail with the portion of               the  scheme  relating  thereto.  Such  special               notice  shall also be posted at the office  of               the Town planning, Officer. Such notice  shall               be given in the cases mentioned in clause (i),               (ii) and (iii) of sub-section (1) of s. 32 and               in any other cases where any persons have  not               been  sufficiently  informed that  any  matter               affecting them is to be considered.               (4)  The Town Planning Officer shall 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.               (5)  If during the proceedings, it appears  to               the  Town  Planning  Officer  that  there  are               conflicting claims or any difference of  opin-               ion with regard to any part of the scheme, the               Town  Planning  Officer shall record  a  brief               minute in his own hand setting out the  points               at  issue and the necessary  particulars,  and               shall give a decision with the reasons  there-               of. All such minutes shall be appended to  the               scheme.

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   (6) The Town Planning Officer shall record and enter  in the  scheme every decision given by him under  clauses  (i), (ii),  (iii),  (vii), (x) and (xii) of  sub-section  (1)  of section  32.  The  calculations and  estimates  required  by clauses  (iv),  (v) , (vi), (vii), (ix), (x) and  (xiii)  of sub-section (1) of section 32 shall be set out and recorded.     (7)  The  final  scheme drawn up by  the  Town  Planning Officer shall include the particulars specified in rule 17.     (8)  The component parts of the scheme shall be  so  ar- ranged  that they may be readily referred to  in  connection with the map and plans. (9) Omitted.     A  reading of s. 32 read with Rule 21(3) makes it  abun- dantly  clear that the the Town Planning Officer is to  give notice  of at least 3 days in the prescribed manner  to  the effected  persons to submit objections or views; are  to  be given  adequate opportunity under rule 21(4) to respond  and thereafter the Officer is to demarcate the area allotted  to or reserved for public purposes or for purpose of the  local authority  and  the reconstituted plots to  be  allotted  to persons  in  ownership with the shares of  such  persons  in common  plot  etc. He is also entitled to alter  the  bound- aries,  allocate certain lands for public  purposes,  reduce the size of the existing plots or re-distribute the plots to the owners etc. in the 237 reconstituted  plot. The second stage is the calculation  of the contribution and apportionment thereof among the persons liable  to  make contribution. Thus the owner, tenant  or  a sub-tenant, as the case may be, is entitled to a notice  and an adequate opportunity to place on record, if he so choses, his objections or views and the same shall be considered and action  taken  thereafter.  It is settled  law  that  before depriving  a person of his property or imposing any  further liability,  the principles of natural justice require  prior notice  and reasonable opportunity to him to put  forth  his claim or  objections. Rule 21(3) speaks of special notice of at  least three days duration. It is in consonance with  and in  compliance  of the principles of  natural  justice.  The legislature  thus  made a distinction  between  the  general notice  envisaged  in sub-rule (1) of Rule  21  and  special notice under sub-rule (3) of Rule 21, which was in  addition to the former.     The  purposes  of  clauses (3) and (4) of  Rule  21  are obvious  and  the consequences that would  ensue  are  self- evident. These sub-rules subserve the principles of  natural justice  to avoid arbitrariness offending Art. 14 and to  be just and fair procedures satisfying the mandate of Art.  21. Nonobservance otherwise would render the scheme illegal.  No provision of a statute or Rule would be rendered  surplusage or  otiose. The construction of the Rules by the Full  Bench would,  however,  result  in rendering subrules  (3)  &  (4) surplusage  and  otiose. Sub-rule (4) postulates  that  Town Planning  Officer  shah  give to a person  effected  by  the scheme  sufficient opportunity to state his views and  shall not give any. decision till he duly considers the  represen- tation,  if any. The issuance of notice under  sub-rule  (3) and giving of sufficient opportunity under sub-rule (4)  are self-evident to subserve the basic concept of fair and  just procedure.  Accordingly  we hold that  issuance  of  special notice  of  at least three clear days  duration  and  giving sufficient  opportunity to the person effected to put  forth his  views  of the scheme are mandatory  and  non-compliance thereof vitiates the validity of the final scheme.     The  use  of ’shall’ in the given circumstances  may  be

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construed to be directory but not mandatory as contended  by Shri Mehta. The appearance of ’shall’ is not conclusive, nor per  se connotes its mandatory contour. Its meaning must  be ascertained  in the light of the legislative intent  in  its employment, the context in which it was couched, the  conse- quences it produces the result it effected and above all the purpose  it seek to serve, would all be kept in  view.  From the fact situation the courts are to cull out the  intention whether  the  construction to be put up would  subserve  the purpose  of  the legislative intent or tend  to  defeat  it. Public interest, is always a paramount consideration.  Since the  non-compliance  with issuance of notice and  giving  of sufficient opportunity contemplated under sub-rules (3)  and (4) of Rule 21 injuriously affects the right to 238 property  of  the owner or interest of the  tenant  or  sub- tenant,  as  the case may be, it shall be  construed  to  be mandatory and not directory. In this view it is redundant to burden  the judgment with all the decisions cited by  either counsel.     The principle of. Waiver connotes issuance of notice and non-response  thereto.  Everyone  has a right  to  waive  an advantage  or  protection which law seeks to  give  him/her. Undoubtedly, if a notice iS issued and no representation was made  by either the owner, tenant or a sub-tenant, it  would amount  to waive the opportunity and such person  cannot  be permitted to turn round, after the scheme reaches  finality, to say that there is non-compliance of sub-rules (3) and (4) of  Rule 21. It would amount to putting premium on  dilatory and dishonest conduct.     Accordingly,  we  are of the considered  view  that  the judgments in Kaushikprasad Chandulal Mahadevia & Anr. v. The Ahmedabad  Municipal Corporation and Ors,, 1970 (11)  G.L.R. 993 and Mohanlal Jesinghbhai v. P.J. Patel, Town Development Officer,  Ahmedabad Municipal Corporation * Ors., 1970  (11) G.L.R. 1035, laid down the law correctly. The finding of the Full  Bench in the first part of its judgment to the  effect that  non-compliance with the requirements of sub-rules  (3) and (4) of Rule 21 does not vitiate the scheme is not  sound in law.     It is seen that the appellant has been in possession  as tenant  for well over half a century and, therefore,  it  is injuriously  affected by the scheme which has the effect  of terminating  his possession and this adversely  affects  its business  in  the demised premises. Since it  is  a  running business  over  the  years, the respondent  is  directed  to provide an alternative premises by allotting a suitable shop within  the city to the appellant; to put it  in  possession thereof and until then allow its occupation of demised shop. In  case  the appellant does not vacate or creates  any  ob- struction in any form in the matter of possession, it  would be  open  to the respondent to have  the  appellant  ejected summarily.  In  this view we decline to interfere  with  the scheme.  The  appeal  is accordingly allowed  to  the  above extent and in other respects the decree of the Courts  below is upheld. But in the circumstances parties are directed  to bear their own costs. T.N.A.                                                Appeal allowed. 239