http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 23  

PETITIONER: K. L. GUPTA & ORS.

       Vs.

RESPONDENT: THE BOMBAY MUNICIPAL CORPORATION AND ORS.

DATE OF JUDGMENT: 21/08/1967

BENCH: MITTER, G.K. BENCH: MITTER, G.K. WANCHOO, K.N. (CJ) BACHAWAT, R.S. RAMASWAMI, V. HEGDE, K.S.

CITATION:  1968 AIR  303            1968 SCR  (1) 674  CITATOR INFO :  R          1971 SC 474  (6)  R          1979 SC1803  (41)  R          1980 SC 962  (13)

ACT: Bombay  Town  Planning  Act, 1954, ss. 9,  10,  11,  12  and 13--Whether   violative  of  Articles  14  and  19  of   the Constitution.

HEADNOTE: The petitioners were owners of certain land in Greater  Bom- bay  in  respect of which a declaration of  intention  under s.4(1)  of the Bombay Town Planning Act, 1954, to prepare  a development  plan,  had been made by the  respondent  Bombay Municipal  Corporation.   They  applied  to  the   Municipal Commissioner, in January 1962, for permission to change  the existing   user  of  their  land  and  for  a   commencement certificate under s. 12 to construct factory sheds on a part of  the  land,  but their application was  rejected  by  the Executive Engineer, Development Plan.  A tentative  develop- ment plan for the area which included the petitioner’s  land was  published on January 9, 1964, in which their  land  was shown  as  partly  reserved for  public  roads,  partly  for industrial purposes and the rest was marked green.  After  a large number of objections and suggestions on the  tentative plan had been received and considered in accordance with the provisions  of  s. 9 of the Act, the  Municipal  Corporation finally  approved the plan on July 2, 1964 and forwarded  it to  the State Government for its sanction under s. 10.   The State  Government sanctioned the final development plan  for the  ward  in which the petitioners’ lands were  located  on September  14, 1966 after consulting its special  Consulting Surveyor, who scrutinised all the objections received by the Municipal  Corporation and heard the objectors.   The  final plan  showed that a major portion of the  petitioner’s  land was earmarked for a recreation centre. Although a writ petition filed by the petitioners before the publication  of the tentative development plan  against  the rejection   of   their  application   for   a   commencement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 23  

certificate was allowed by the High Court on the ground that powers of the Municipal Corporation under s. 12 had not been exercised  by  an  officer  prescribed  under  s.  86,   two subsequent petitions filed by them after the approval of the final  plan by the Municipal Corporation to  obtain  redesi- gnation of their land were dismissed. In  the present petition under Art. 32 of the  Constitution, the petitioners claimed that after the reservation of  their land as shown in the tentative plan published on January  9, 1964,  its redesignation in the final plan for a  recreation centre  was without authority of law and violative of  their rights under Arts. 14 and 19.  It was contended, inter alia, (i)  that  sections  9 and 10 of the Act  were  invalid  and unconstitutional in that they empowered the local  authority and  the  State  Government  to  modify,  as  a  result   of objections received from other persons, a development  plan, against  which  a particular person may not  have  objected, without  giving an opportunity to that person  to  represent against a subsequent modification by which his interest  may be adversely affected; (ii) that under s. 12 the final 275 and  only authority who had the power to grant  or  withhold permission  to  carry  on  any development  work  after  a declaration  of  intention under s. 4(1) was  the  Municipal Commissioner;  he  could,  under s. 13, grant  or  refuse  a commencement  certificate  at will, there being  nothing  to guide  him  in  such a matter before the  preparation  of  a development plan; even after the preparation of such a plan, a commencement certificate could be refused arbitrarily  and there  was no provision for any appeal from or  revision  of the  order  containing the refusal; and (iii)  that  by  the combined operation of ss. 4 and 11 (3), the local  authority could  easily delay the acquisition of any  land  designated for a public purpose under s. 7 of the Act for 14 years  and this constituted an unreasonable restriction on the right to hold property. Held: The objections raised as to the invalidity of sections 9, 10, 11, 12 and 13 could not be upheld. (i) The contention that a person was given no opportunity of meeting  the objections raised by others with regard to  the development  plan  has no force in the light  of  the  facts disclosed  as to the enormity of the task of finalising  the development  plan.  If the authorities were to hear all  the parties  with regard to all the suggestions made, give  them separate and independent hearings, no development plan could ever  be  prepared.  The authority was  not  concerned  with considering  the  advantages or  disadvantages  which  might accrue  to a particular person or a group of persons  owning lands  in different parts of the area concerned, but it  had to go by the larger interest of the population at large  and the  generations to come.  The affidavits show that  nothing was  done  haphazardly.  Suggestions and objections  at  all stages   were  carefully  considered,  the   assistance   of committees of experts was taken and the plan emerged    only after an immense amount of labour had been bestowed   in its preparation. [297B-D] (ii) There was enough guidance in the Town Planning Act to enable the Municipal Commissioner to come to a conclusion as to  whether a particular commencement certificate should  be granted or not and the power exercisable under ss. 12 and 13 was  neither  uncanalised nor arbitrary.  S.  13  prescribes that  the  local  authority should make  an  inquiry  before granting  or  refusing  a  commencement  certificate.    The Authority must therefore look into all material available to it  including the tentative plans and the final  development

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 23  

plan and then make up its mind as to whether a  commencement certificate should be granted or not.  If the provisions  of the  Act are borne in mind and the rules  framed  thereunder complied  with, there was little or no scope for  the  local authority  acting  arbitrarily  under  s.  13  of  the  Act. [298A--C] The  fact that no appeal from the decision under s.  13  was provided  for  is a matter of no moment  for  the  authority under  s.  13  is no less than  the  Municipal  Commissioner himself  or the Chief Officer of the Municipal Borough or  a person  exercising the power of an Executive Officer of  any local authority. when the’ power had to be exercised by one of  the highest officers of the local  authority  intimately connected  with the preparation of the development  plan  in all  its  stages,  it is difficult to  envisage  what  other authority  could  be entrusted with the work  of  appeal  or revision. [297F-H] (iii)  In  view of the immensity of the task  of  the  local authorities  to find funds for the acquisition of lands  for public  purposes, a period’ of ten years fixed by s. 11  (3) was not too long.  In the present case the authority had  to deal  with an area measuring about 169 sq. miles  which  was larger than most of the big cities in India.  276 The preparation of a development plan for such an area  must take a considerable period of time.  Furthermore, it is  not beyond  the range of possibility that the final  development plan  may require modifications.. It could not therefore  be held  that the limit of time fixed under s. 14 read with  s. 11(3)  formed an unreasonable restriction on the  right  to hold property. [298G-229A] Joyti  Pershad v. Administration for The Union Territory  of Delhi, [1962] 2 S.C.R. 125 Manecklal Chhotalal & Ors. v.  M. G. Makwana and Ors; W.P. 64/1966, cases, relied upon.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petitions Nos. 215, 228, 251 and 256 of 1966. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. K.  R.  Chaudhuri and K. Rajendra Chaudhury, for  the  peti- tioner (in W.P. No. 215 of 1966). A.S. R. Chari, S. B. Naik, K. Rajendra Chaudhury and K.  R. Chaudhuri, for the petitioners (in W. Ps.   Nos.  228 and 251 of 1966). B.  Sen,  Rameshwar  Nath  and  Mahinder  Narain,  for   the petitioner (in W.P. No. 256 of 1966). Purshottam Trikamdas, G. L. Sanghi and J. B. Dadachanji, for the respondents Nos. 1-3 (in W.Ps. Nos. 215, 228 and 256  of 1966)  and  respondents Nos.  1 and 2 (in W.P.  No.  251  of 1966). M.  S. K. Sastri and S. P. Nayar, for respondent No.  4  (in W.Ps.  Nos. 215, 228 and 256 of 1966) and respondent  No.  3 (in W.P. No. 251 of 1966). The Judgment of the Court was delivered by Mitter,  J.  This is a group of four  writ  petitions  filed under Art. 32 of the Constitution.  The common attack in all these petitions is against the validity of certain  sections of the Bombay Town Planning Act, 1954, hereinafter  referred to as the Act. The  petitioners  are all owners of plots of land  in  areas round about Bombay, commonly known as Greater Bombay.   They have all similar but separate grievances with respect to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 23  

development  plan prepared and published under the Act.   In Writ Petition No. 215 of 1966, the petitioner’s complaint is as  regards his land being earmarked for the public  purpose of  a park in the Development Plan prepared under  the  Act. He  seeks to, prevent the respondents from giving effect  to the said designation of lands in the Development Plan and in particular,  to have the third respondent’s order  i.e.  the Executive Engineer (Planning) (of the Municipal  Corporation of  Bombay) dated 11th August, 1964 to the effect  that  his lands were needed for the public purpose of a park  quashed. In  Writ  Petition No. 228 of 1966 the prayer  is  that  the designation of the petitioners’ land as being earmarked  for recreation centre and for green belt in the development plan 277 of ’P’ Ward of the City of Greater Bombay should be removed, that  their  lands should be redesignated as  earmarked  for industrial   purpose,  that  the  order  of  the   Assistant Engineer,   Bombay  Municipal  Corporation,  rejecting   the petitioners’  proposal  for  construction  of  two   factory buildings  and  lavatory  blocks should  be  quashed  and  a declaration  be  made that ss. 9, 10, 11, 12 and 13  of  the Bombay Town Planning Act are ultra vires the Constitution of India.  In Writ Petition No. 251 of 1966 the prayers include an  order for quashing Resolution No. 1173 of  December  19, 1963  and  Resolution No. 343 of July 2, 1964 of  the  first respondent  and for removal of the designation  attached  to the petitioners’ land as reserved for Government purposes in the Development Plan of ’P’ Ward of Greater Bombay.  In Writ Petition No. 256 of 1966 the prayers are inter alia for  the issue of writs declaring that the Development Plan submitted by the first respondent to the fourth respondent  (including P  Ward) on July 3, 1964 infringes the  petitioners’  rights and  directing the issue of a commencement  certificate  for the  development  and utilisation of the said  land  in  the manner proposed.  At the hearing, a further prayer was  made for  urging an additional ground in all the  writ  petitions challenging the validity of s. 17 of the, Act. We may consider the broad facts in Writ Petition No. 228  of 1966 by way of sample.  The petitioners in this case are two persons  who claim to be owners of land bearing S.  No.  70, Hissa Nos. 4, 5 and 6 comprising an aggregate area of 31,641 sq.  yds.  approximately in village Pahadi  at  Goregaon  in Greater Bombay.  Their case is that they had applied through their architect on January 2, 1962 for permission to  change the  existing  user  of  their  lands  by  putting  them  to industrial  use  and had written a letter to  the  Municipal Commissioner  of  Bombay  for that  purpose  by  which  they proposed to construct on a portion of the land in S., No. 70 Hissa No. 4 a shed for a factory and other necessary  sheds. Along  with the said letter, they gave a notice under s.  33 of  the  Bombay  Municipal Corporation Act,  1888  of  their intention  to erect a factory shed on the said land  with  a request  for  approval  thereof.  On January  27,  1962  the Executive   Engineer,   Development  Plan,   intimated   the petitioners that as a major portion of the proposed  factory shed  intended  to  be constructed fell  outside  the  heavy industrial zone in the green belt area as shown in the  plan accompanying the letter and as the area was affected by  net work of proposed 78 East West and 30’ wide North South  road under  the development plan of the area, with only  a  small portion  of  the land shown coloured violet filling  in  the heavy industrial area, a commencement certificate could  not be  granted.   By  their letter dated  March  13,  1962  the petitioners   complained   that  the   Executive   Engineer, Development  Plan, had no authority to earmark any area  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 23  

green belt and therefore he should reconsider the matter and grant a commencement certificate.  On the 278 Same  day,  the  petitioners also  wrote  to  the  Municipal Commissioner  that  inasmuch  as  they  had  not  till  then received   the  notice  of  disapproval  or.   any   further requisition  concerning their application, they would  place on record that their right to proceed with the  construction of the intended shed had become absolute under S. 345 of the Bombay  Municipal  Corporation Act.  On March 22,  1962  the Deputy Municipal Commissioner (Suburbs) acknowledged receipt of the letter.  By letter dated April 18, 1962 the Executive Engineer,  Development Plan, informed the  petitioners  that their  request for a commencement certificate would  not  be reconsidered  until the development plan was finalised.   By their solicitor’s letter dated June 13, 1962 the petitioners wrote  to  the  1st respondent, i.e.  the  Bombay  Municipal Corporation,  that  the  refusal  to  grant  a  commencement certificate  was wrongful.  This was followed up by  a  writ petition  in  the High Court of Bombay  being  Miscellaneous Petition  No.  256 of 1962 challenging the said  refusal  as illegal  and invalid.  By order dated September 7, 1963  the High Court of Bombay allowed the petitioners’ application on the  ground  that  the powers and functions  of  the  Bombay Municipal  Corporation under S. 12 of the Act had  not  been exercised  by an officer prescribed under S. 86 of  the  Act and the decision dated January 27, 1962 was liable to be set aside. The development plan for Greater Bombay (D Ward) was adopted by  the first respondent by resolution No. 1173 on  December 19,  1963.   By this resolution the  second  respondent  was directed  to  submit proposals of the  development  plan  in respect of the remaining wards including Ward P in which the petitioners’  land  was situated.  On January  9,  1964  the development  plan for the remaining wards including  Ward  P was  published by the second respondent in the name  of  the first  respondent.  In this the petitioners’ land was  shown as   partly  reserved  for  public  roads,  for   industrial purposes,  the  major portion being merely marked  by  green colour.   The  petitioners’ complaint is that  the  list  of sites  reserved for public purposes was for the  first  time submitted  by  the  second  respondent  to  the  Development Committee  on  February 8, 1964 showing for the  first  time that  a  major  portion  of  the  petitioners’  lands   were earmarked   for   a  recreation  centre.   This   list   was recommended  for  acceptance by the Committee to  the  first respondent  on June 24, 1964 and approved by resolution  No. 343 on July 2, 1964 and forwarded to the State of  Maharash- tra,  the  fourth respondent herein, on July 8,  1964.   The petitioners complain that although in the plan as originally published the lands of the petitioners were earmarked partly for public roads in an industrial area and merely marked  by green  colour without any specification and designation,  by resolution  No. 343 the first respondent departed  from  the development  plan  and included a portion of the  lands  for recreation  centre  amongst the sites  reserved  for  public purposes.  According to the petitioners, this  redesignation and modification was made although there were no 279 suggestions  before the first, second and third  respondents in the light of which any modification could have been  made under s. 9 of the Act.  The petitioners by their solicitor’s letter  dated  April 16, 1964 requested the  respondents  to alter  the development plan in accordance with the  decision of the Bombay High Court and further demanded re-designation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 23  

of  their  lands as reserved for industrial  purpose.   This matter was again taken up to the High Court of Bombay by way of  petition No. 248 of 1964 challenging the refusal of  the first and second respondents to modify the development plan. This  was  rejected in limine by the High Court on  July  6, 1964.   The appeal therefrom being No. 42 of 1964  was  also rejected on August 12, 1964.  The petitioners’ case is  that the High Court rejected petition No. 248 of 1964 on the view that  they had no cause for complaint unless and  until  the first    respondent   refused   permission    to    commence construction.   They  therefore  submitted  building   plans through their architect on January 9, 1965 for  construction of  a  factory  shed  with  a prayer  for  the  issue  of  a commencement  certificate.   The third respondent  i.e.  the Assistant Engineer, Bombay Municipal Corporation by  letters dated  January 25, 1965 and February 13, 1965  rejected  the petitioners’ proposal for construction of factory  buildings on  their  lands on the ground that the lands  fell  in  the reservation for playgrounds and 200 feet wide green belt  in the development plan. The  petitioners again went up to the Bombay High  Court  on July  2, 1965 by another petition No. 312 of 1965  for,  the issue of a writ of mandamus for setting aside the orders  of the third respondent dated January 25, 1965 and February 13, 1965 and directing the respondent to remove the  designation of  recreation centre and green belt from  the  petitioners’ land and to designate the entire holding as industrial  area in  the  development plan.  The petition  was  rejected   in limine by the Bombay High Court on July 6, 1965.  An  appeal therefrom came for hearing on August 10, 1965 when an  order was made by consent directing the writ petition to be placed for  hearing before a Division Bench.  Ultimately,  however, this  was  dismissed  by  judgment  dated  April  25,  1966. According  to the petitioners, they had not  challenged  the constitutionality of the Act in their petitions. In  the  present  petition to  this  Court  the  substantial complaint  is  that  their  lands  were  earmarked  in   the development plan originally published on January 9, 1964  by green   colour  without  assigning  any  purpose   and   the reservation and re-designation of these lands for recreation centre  and  green  belt  by the  first,  second  and  third respondents  in the development plan finally adopted was  in contravention  of s. 9 of the Act.  This  re-designation  is challenged  as being without authority of law and  violative of  the  fundamental rights of the  petitioners  inter  alia under Arts. 14 and 19 of the Constitution. 280 In the affidavit in opposition filed on behalf of the  first respondent,  reference is made to the manner and the  course of  preparation of the development plan set out  in  greater detail  hereafter.   A  preliminary  objection  was   taken, formulated  in  some  detail, that on  the  failure  of  the petitions  in the Bombay High Court, the  petitioners  could not  re-agitate  the  matter in  this  Court  on  principles analogous  to res judicata.  It is not necessary to go  into that  question  or  take note of  the  correspondence  which passed  between  the parties and/or their solicitors  up  to 1964.   According to the affidavit, the lands  belonging  to the petitioners were shown in the draft development plan  as published  on 9th January 1964 as reserved for  green  belt, for  public roads with a path being shown as falling in  the industrial  zone.   The  deponent,  the  Executive  Engineer (Planning)  stated  that  the  suggestions  and   objections received after the publication of the draft plan were  care- fully   considered  by  the  Development   Committee   which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 23  

submitted  its report with its recommendations to the  first respondent  for its approval and such approval was given  on July  2, 1964.  Ultimately, the plan was sanctioned  by  the fourth  respondent after consulting the  Special  Consulting Surveyor subject to certain modifications.  The petitioners’ solicitor’s  letter dated April 16, 1964 was  placed  before the   Development  Commitee  for  due  consideration.    The Development  Plan Committee considered the suggestions  made by  the public and gave a report in respect thereof  to  the first respondent from time to time who finalised the plan at its  meeting  held  on  July  2,  1964.   According  to  the deponent,  the letters dated January 25, 1965  and  February 13,  1965 addressed by the third respondent were  in  proper exercise  of  the  right of rejection  of  the  petitioners’ proposal  for construction of a factory  building.   Finally the  deponent stated that no part of the petitioners’  lands were  earmarked  for green belt in the development  plan  as finally  approved by the respondent, that out of 32,000  sq. yds. of the petitioners’ lands, 12,144 sq. yards of land had been earmarked and reserved for playground’ 804 sq. yds. had been earmarked and reserved for municipal wholesale  market, 7,821  sq. yds. had been earmarked and reserved  for  public road,  1167  sq. yds. fell under residential  zone  and  the balance of 8,702 sq. yds. fell in the industrial zone. It  will therefore be noticed that the facts as laid in  the petitions are not all admitted in the affidavit, but nothing was sought to be made out of this and one common argument as to  the invalidity of the different sections of the Act  was advanced-  in  great  detail mainly by  Mr.  Chari  who  was followed  by Mr. Sen and Mr. Chaudhuri.  In  substance,  the united  attack  was against the validity  of  the  different sections mentioned in detail hereafter. Before examining the contentions on the points of law raised ,in  this case, it is necessary to appreciate what  the  Act sought  to  achieve and why it was brought  on  the  statute book.  In order to do this, it is necessary to take stock of the position at the time 281 of  its enactment so that attention may be focussed  on  the situation  calling  for a remedy, and  how  the  legislature sought  to  tackle it. It is common. knowledge  that  for  a number of years past, all over India, there has been and  is continuing  a  great influx of people from the  villages  to towns   and  cities  for  the  purpose  of   residence   and employment.   Besides this, the whole of the country  is  in the grip of a population explosion.  Another circumstance to be  reckoned with is that industrial development  is  taking place  in and round about many cities which in its  turn  is attracting  people  from  outside.  Most of  our  towns  and cities  have grown up without any planning with  the  result that  public  amenities therein are now being  found  to  be wholly  inadequate  for  the  already  enlarged  and   still expanding  population.  The roads are too narrow for  modern vehicular traffic.  The drainage system, such as it  obtains in most of the towns and cities, is hopelessly inadequate to cope   with  the  requirements  of  an   already   overgrown population.   In  most of the towns and cities there  is  no room  for  expansion  of public  amenities  like  hospitals, schools, colleges and libraries or parks.  Some  improvement has been sought to be made by Town Improvement Acts  enacted in the different States.  In order that the suburbs and  the surroundings  of towns and cities be developed properly  and not  allowed  to grow haphazard, the Legislature  of  Bombay felt that towns should be allowed to, .grow only on  planned schemes formulated on the basis of a development plan.   All

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 23  

"local   areas"   which   may  be   equated   roughly   with municipalities  were  to have development plans so  that  an overall picture might be taken of the needs of the expanding town or city and provision made for planned development with regard  to  roads and streets,  sanitary  arrangements  like drainage  and  water  supply,  places  of  public   utility, industrial development etc.  The legislature was well  aware of the practical difficulties and the magnitude of the task. A development plan for a huge area like Greater Bombay could not  be  formulated within a space of weeks  or  months.   A survey had to be made of the area under the local  authority to  take note of the existing conditions and the  plan  pre- pared  keeping  in mind the facilities available  and  those which  might be had in the forseeable future.   Sections  of the  area have to be set apart in the  different  localities for  industrial  and  commercial  development,  for  private housing,  for  the purpose of the Union or  the  State,  for educational  and other institutions, as also for  parks  and places of public resort.  The authority responsible for  the drawing up of the plan had to have regard to the wishes  and suggestions  of  the public and in  particular,  architects, engineers, industrialists and. public bodies.  Of necessity, a  skeleton plan had to be sketched at first which could  be given   a  final  shape  after   considerable   deliberation following the suggestions of the parties interested and  the recommendations   received.    Let  us  now  see   how   the Legislature of Bombay sought to tackle this huge problem. 282 The  Act is described- as one to consolidate and  amend  the law  by  making and executing town  planning  schemes.   The preamble to the Act shows that its object was to ensure that town planning schemes were made in a proper manner and their execution was made effective by local authorities  preparing development   plans  for  the  entire  area   within   their jurisdiction.   A "development plan" under the Act  means  a plan for the development or re-development or improvement of the  entire  area  within  the  jurisdiction.  of  a   local authority.   A  local authority is defined  as  a  municipal corporation  or a municipality and includes  some  appointed committees   as  also  panchayats  constituted   under   the different  Acts.  Chapter II containing ss. 3 to 17  relates to  development plans generally.  S. 3(1) provides  that  as soon as may be after the coming into force of the Act, every local authority shall carry out a survey of the area  within its  jurisdiction and prepare and publish in the  prescribed manner  a development plan and submit the same to the  State Government for sanction.  The limit of time for this purpose was four years.  Sub-s. (3) authorised the State  Government to  make an order for extension of the time fixed by  sub-s. (1)  for adequate reasons.  Sub-s. (4) authorised the  State Government, in case a development plan was not prepared  and published  in  terms of sub-s. (1), to prepare  and  publish such  a  plan,  itself  after  carrying  out  the  necessary surveys.  Under sub-s. (1) of s. 4 even before carrying  out a  survey of the area referred to in sub-ss. (1) and (2)  of S.  3, for the purpose of preparing a development  plan  for such  area,  the  local  authority was  obliged  to  make  a declaration  of its intention to prepare such a plan and  to despatch a copy thereof to the State Government for publica- tion  and publish the same itself in the  prescribed  manner for inviting suggestions from the public within a period  of two  months.  Under sub-s. (2) a copy of the plan was to  be open to the inspection of the public at all reasonable hours at  the  head office of the local authority.  Ss.  5  and  6 provided  for the manner of preparing development plans  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 23  

the  authorisation of certain persons to enter upon,  survey and  mark,’ out that land for the preparation of  the  plan. S.  7  indicated  the manner in which  the  development  and improvement  of the entire area within the  jurisdiction  of the local authority was to be carried out and regulated.  In particular, it had to contain several proposals, namely:- (a)  for  designating the use of the land for  the  purposes such as (1) residential, (2) industrial, (3) commercial, and (4) agricultural-, (b)  for  designation of land for public  purposes  such  as parks,   playgrounds,  recreation  grounds,   open   spaces, schools,  markets  or  medical, public  health  or  physical culture institutions; (c)  for roads and highways; (d)  for  the  reservation of land for the  purpose  of  the Union,   State, any local authority or any  other  authority established by law in India; and 283 (e) such other proposals for public or other purposes as may from  time  to  time be approved by  a  local  authority  or directed by the State Government in this behalf. Under s. 8 various particulars had to be published and  sub- mitted  to the State Government along with  the  development plan inclusive of a report of the surveys carried out by the local  authority, a report explaining the provisions of  the development  plan,  a report of the stages by which  it  was proposed  to  meet  the obligations  imposed  on  the  local authority  by  the  development  plan  and  an   approximate estimate  of the cost involved in the acquisition  of  lands reserved for public purposes. It  will  be noticed that up to this point the  public  have practically  no say in the matter as to how the  development plan  should be prepared.  S. 9 however gives such right  to the public and provides:               "If  within  two  months  from  the  date   of               publication of the development plan any member               of  the public communicates in writing to  the               local  authority  any suggestion  relating  to               such plan, the local authority shall  consider               such  suggestion and may, at any  time  before               submitting  the development plan to the  State               Government,  modify  such plan  as  it  thinks               fit." At  this  stage therefore every owner of land is  given  the right to make suggestions for modification of the plan.   He can  consult the plan and make his suggestions,  principally with  the  idea  that  his interest  may  not  be  adversely affected  although  there is nothing in  the  section  which prevents  him from making suggestions generally with  regard to the plan itself. Under  s. 10(1) the State Government is given the  power  to sanction,  the  development plan submitted to  it  for  the, whole of the area, or sanction it separately in parts either without  modification  or  with  such  modification  as   it considers expedient within the time prescribed by the rules. If  the development plan is sanctioned separately in  parts, then  each  part so sanctioned is deemed, to  be  the  final development   plan  for  the  purposes  of  the   succeeding provisions of the Act.  All such provisions are to apply  in relation  to such part as they apply in relation to a  deve- lopment plan relating to the whole of the area.  Under  sub- s. 8(2) the State Government has to fix in its  notification sanctioning the plan a date not earlier than one month after the  publication of which the final development  plan  shall come into force.  Sub-s. (3) provides:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 23  

             "If the development plan contains any proposal               for the designation of any land for a  purpose               specified  in clause (b) or (e) of  section  7               and  if such land does not vest in  the  local               authority, the State Government shall 284               not   include   the  said   purpose   in   the               development  plan unless it is satisfied  that               the local authority concerned shall be able to               acquire  such  land by  private  agreement  or               compulsory  purchase  within a period  of  ten               years  from  the  date  on  which  the   final               development plan comes into force." The  idea behind this sub-section is that if any land is  to be  set  apart  for  public  purposes  such  as  parks  etc. mentioned  in  cl. (b) of s. 7 or any other  public  purpose which might be approved by a local authority or directed  by the State Government in terms of cl. (e) of S. 7, the  State Government must examine whether it would be possible for the local authority to be able ’to acquire such land by  private agreement  or  compulsory purchase within a  period  of  ten years.   This acts as a check on the local authority  making too  ambitious  proposals for designating lands  for  public purposes which they may never have the means to fulfil.   It is  obvious  that the local authority must be given  a  rea- sonable  time for the purpose and, the  legislature  thought that  a period of ten years was a sufficient one.  S.  11(1) empowers the local authority to acquire any land  designated in the development plan for a purpose specified in cls.  (b) (c),  (d)  or (e) of S. 7 either by agreement or  under  the Land  Acquisition  Act.   Under  sub-s. (2)  of  s.  II  the provisions of the Land Acquisition Act of 1894 as amended by the   Schedule  to  the  Act  are  to  apply  to  all   such acquisitions.   The Schedule to the Act shows that S. 23  of the  Land  Acquisition  Act  is to  stand  amended  for  the acquisition  under this Act with regard to the  compensation to be awarded.  In fact it is for the benefit of the  person whose  land is acquired, as he can get the market  value  of the  land at the date of the publication of the  declaration under  S.  6 of the Land Acquisition Act in place of  s.  4. Sub-s.  (3)  provides  that if the designated  land  is  not acquired by agreement within ten years from the date  speci- fied  under sub-s. (3) of S. 10 or if proceedings under  the Land  Acquisition Act are not commenced within such  period, the  owner or any person interested in the land  may  serve notice to the local authority and if within six months  from the date of such notice the land is not acquired or no steps as   aforesaid  are  commenced  for  its  acquisition,   the designation shall be deemed to have ,lapsed.  This provision again is for the benefit of the owner of the land for unless the land is-acquired or steps taken in that be. half  within the  fixed  limits  of time, he ceases to be  bound  by  the designation of his land as given in the development plan. S. 12 obliges every person who desires to carry on any deve- lopment  work in any building or in or over any land  within the  limits  of  the said area after the  date  on  which  a declaration  of intention to prepare a development  plan  to apply to the local authority for a commencement  certificate for  the  purpose.  ’Development ’in this  connection  means carrying out of building or 285 other operations in or over or under any land or the  making of  any material change in the use of any building or  other land.   It  is to be noticed that the section  imposes  such restriction  not  only from the date of preparation  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 23  

development  plan  but as soon as there  is  publication  of intention to prepare a development plan. In  order  to make it obligatory on the local  authority  to direct  its attention to all applications for permission  to carry on development work, the legislature provided by  sub- s. (1) of s. 13 that               "The   local  authority  on  receipt  of   the               application  for  permission  shall  at   once               furnish   the   applicant   with   a   written               acknowledgment   of  its  receipt  and   after               inquiry   may   either  grant  or   refuse   a               commencement certificate.               Provided that such certificate may be  granted               subject to such general or special  conditions               as  the State Government may by order made  in               this behalf direct." Under sub-s. (2) if the local authority does not communicate its  decision  within  three months from the  date  of  such acknowledgment,  such  certificate shall be deemed  to  have been granted to the applicant.  Sub-s. (3) provides that  no compensation  is  to be payable for the refusal  of  or  the insertion  or imposition of conditions in  the  commencement certificate.   This is subject to’ the provisions of ss.  14 and  15.   Sub-s.  (4)  lays down  that  any  work  done  in contravention  of  s. 12 or of sub-s. (1) of s.  13  may  be pulled down by the local authority. In this case, we are not concerned with the applicability of ss. 14, 15 and 16.  S. 17 which was attacked in these  cases provides that:               "At  least  once in every ten years  from  the               date  on which the last development plan  came               into force and where the plan is sanctioned in               parts  from  the date on which the  last  part               came into force, the local authority may,  and               if  so required by the State Government  after               the  date on which a development plan for  any               area or, as the case may be, the part of  such               plan  has come into force shall, carry  out  a               fresh   survey   of  the   area   within   its               jurisdiction  with  a  view  to  revising  the               existing development plan including all  parts               if sanctioned separately and the provisions of               sections  4 to 16 (both inclusive)  shall,  so               far as they can be made, applicable, apply  in               respect  of such revision of  the  development               plan." Strong  objection  was taken to this section on  the  ground that  it  gave  the  local  authority  concerned  almost  an unlimited  power  of  protracting the  finalisation  of  the development plan if they were 286 so minded in which case the owners of property would be com- pletely at the mercy of the local authority with respect  to the development of their own land. Chapter  III deals with the making of a town scheme.   Under S. 18 such a scheme is ordinarily to be made for the purpose of implementing the proposals in the final development plan. It is in the town planning scheme that provisions are to  be made  for laying out or relaying out of land, laying out  of new  streets  or  roads, the  construction,  alteration  and removal  of buildings, the allotment or reservation of  land for  roads, open spaces, recreation grounds etc.,  lighting, water  supply  and the many other things which  have  to  be provided for in the laying out of a town. Chapter IV deals with town planning schemes in general.   S.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 23  

21  shows that such a scheme may be made in accordance  with the provisions of the Act in respect of land which is in the course  of development or is likely to be used for  building purposes,  or has already been built upon.  S.  22  empowers local  authority  to declare its intention to  make  a  town planning scheme in respect of the whole or any part of  land referred  to in S. 2 1. Under S. 23 the local  authority  is obliged   to  make  in  consultation  with  the   Consulting Surveyor,  a draft scheme for the area in respect  of  which the declaration has been made within twelve months from  the said date.  The other sections 24 to 29 generally follow the same  pattern with regard to town planning schemes as is  to be  found in ss. 7 to 13 relating to development plans.   S. 29 restricts the right of owners of land to erect or proceed with  any  building  or  remove,  pull  down,  alter,   make additions  to or any substantial repair to any  building  or change  the  use  of  any land or  building  unless  he  has obtained the necessary permission from the local  authority, once  there  has been a declaration of intention to  make  a scheme under S. 22.  S. 87 gives the State Government  power to make rules for carrying out the purposes of the Act. We may now proceed to take note of how the Bombay  Municipal Corporation  proceeded to make the development plan  against which  common  complaints have been made.  The gist  of  the contents of the counter affidavits is as follows.  After the Act  came into force on April 1, 1957, the first  respondent by  resolution  No.  409 dated July 7,  1958,  declared  its intention to prepare a development plan for the entire  area of Greater Bombay within its jurisdiction.  In terms of rule 3  framed under the Act, a map of the said area  accompanied the said declaration and within 15 days of the date of  such declaration  the first respondent despatched a copy  of  the same together with a copy of the map to the State Government for  publication in the Official Gazette.  On September  18, 1958 the first respondent published its intention to prepare a development plan by means of advertisements in  newspapers circulating  in  Greater Bombay and affixing copies  of  the advertisements  on the notice boards at its head office  and other 287 prominent places in the area.  By the said publications, the first respondent invited objections and suggestions from the public  within  a  period of two months,  keeping  open  for inspection  a  copy  of the plan at its  head  office.   The Municipal Commissioner of Bombay who is a respondent  herein set  up two Advisory Committees for rendering assistance  in the preparation of the development plan.  One Committee  was composed  of  representatives  of  Government   departments, public  authorities,  industries etc., while the  other  was composed  of  practising architects  and  engineers.   After taking into consideration the suggestions received and- con- sultations  held,  tentative development plans for  all  the wards  in Greater Bombay were prepared and discussed by  the two Advisory Committees.  With a view to give wide publicity to  the  said  plans, the same  were  displayed  for  public inspection  during  the  year  1960-61.  This  was   further notified in newspapers.  As a result of the publication’  of the  tentative  plans,  a large  number  of  objections  and suggestions  regarding the tentative development plans  were received  from  the  public by the  first  respondent.   The tentative  plan for D Ward was put up first as a model  plan for   consideration  by  the  Development   Plan   Committee appointed  by  the  first respondent.   The  said  Committee invited suggestions from municipal councillors and different organisations   and  institutions.   Thereafter,  the   said

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 23  

Committee   recommended  that  the  second   respondent   be authorised to publish.., the plan for ’D’ Ward and to invite suggestions from the public as per the provisions of s. 9 of the Act.  The Development Plan Committee made similar recom- mendations  for  the  other wards.   Thereafter,  the  first respondent resolved and authorised the second respondent  to publish the development plans in respect of all other  wards in Greater Bombay including ’P’ Ward. We  may  now make a note of a few details.  The draft  of  a section  of  the development plan for K, P and R  Wards  was published  on or about July 7, 1961.  The  Development  Plan Committee took up its work after appointment on December 11, 1961.   The  formalities  mentioned  above  were  then  gone through.   On  January 9, 1964 the  first  respondent  after considering the proposals made in the tentative  development plan  and  the reports of the  Development  Plan  Committee, prepared a development plan and published the same by  means of advertisements in approved newspapers and in the Official Gazette.   Copies of the advertisements were also  displayed at  various prominent places.  The advertisements  published in pursuance of s. 9 of the Act announced to the public that communications in writing containing suggestions relating to the  plan  would be welcome within a period of  two  months. Many  such suggestions were received and considered  by  the Development  Plan  Committee who made reports from  time  to time  to  the  first  respondent.   After  considering  such reports  of  the  Development  Plan  Committee,  the   first respondent  at a meeting held on July 2, 1964 finalised  the development plan 288 after  incorporating therein such suggestions as it  thought proper or necessary.  On July 8, 1964, the development  plan was  submitted  by the Municipal Commissioner to  the  State Government  for  its sanction under S. 10 of the  Act.   The State Government forwarded all objections to the development plan  received  by  the  first  respondent  to  the  Special Consulting   Surveyor  to  the  Government  of   Maharashtra specially   appointed  to  advise  the  Government  on   the development  plan.  The Consulting Surveyor scrutinised  the objections  and- advised the Government thereon.   In  cases where  changes had been made by the first  respondent  after publication  of the draft development plan,  the  Consulting Surveyor heard the parties who had objected to such  changes and then framed his proposals in respect of such ward in the development plan for sanction by the Government.  Government had  to consider the development plan ward-wise in  view  of the enormity of the task as the plan covered an area of  169 sq.-miles divided into fifteen wards affecting a  population of nearly 45 lakhs.  The plan was so large and detailed that Government found it impracticable- to sanction it within the time  prescribed  by  the Bombay  Town  Planning  Rules  and consequently  had  the time extended from time  to  time  by various   resolutions.   Ultimately  after  consulting   the Special  Consulting Surveyor, the Government of  Maharashtra sanctioned  the development plan in respect of ’P’  Ward  on September 14, 1966.  The final plan with regard to Ward  ’D’ had been sanctioned, on December 10, 1963. The  common complaint in all these petitions is that  ss.  9 and  10 of the Act are invalid and unconstitutional in  that they empower the local authority and the State Government to modify  the development plan without giving  opportunity  to persons  whose interest might be adversely affected by  such modification.  It was argued that a person, say A, who  had, a  look  at  the  development plan  as  first  prepared  and published,  might feel quite satisfied with it and not  make

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 23  

any  suggestions in respect thereof.  It being however  open to  others to make suggestions without any notice to A,  the local  authority  was in a position to  consider  such  sug- gestions  and  give effect thereto in the  development  plan submitted  to  the State Government.   The  first  mentioned person  A in such a case would remain in blissful  ignorance of the fact that the plan as finally submitted affected  his interest very seriously.  It was then argued, that if such a modified  plan was sent to the State Government it was  open to Government to sanction it after consulting the Consulting Surveyor  again  without any notice to a person like  A  who might find the sanctioned plan very severely prejudicing his interests in the land held by him.  To take an instance,  it was  said  a  person  who found that his  land  was  in  the industrial belt in the tentative development plan might feel quite  happy with it but as a result of  the  modifications, the plan, as finally sanctioned, might designate his land as earmarked for public purposes. 289 By  this  he  would  stand to  lose  his  land  without  any opportunity being given to him to make any representation in respect thereof. It was next argued that the powers and functions of a  local authority for purposes of ss. 12 and 13, amongst others were to be exercised and performed by the Municipal  Commissioner of Bombay under s. 86 of the Act.  Under s. 12 the final and only  authority  who  had the power  to  grant  or  withhold permission  to  carry  on  any  development  work  was   the Municipal  Commissioner.   He could, under s.  13  grant  or refuse a commencement certificate at his own sweet will  and pleasure  there being nothing to guide him in such a  matter before the preparation of a development plan.  It was argued that   even  after  the  preparation  of  such  a   plan   a commencement  certificate could be refused  arbitrarily  and there  was no provision for any appeal from or  revision  of the order containing the refusal. It  was next argued that by the combined operation of ss.  4 and  11(3)  the  local  authority  could  easily  delay  the acquisition of any land designated for public purposes under s.  7  of  the Act for 14 years and if  resort  was  had  to power,% under s. 17 of revising the development plan at  the end of this period of 14 years.  provisions of ss. 4 to  16 would  again  become  operative with  the  result  that  the acquisition  might  be delayed for a further period  of  ten years.   Mr. Chari went to the length of arguing that s.  17 might even be resorted to more than once and so  acquisition might be held up indefinitely from generation to generation. In our opinion, the argument though at first sight  forceful cannot  be accepted.  As already noted, a  development  plan for an area like Greater Bombay cannot be chalked out or put in  blueprint  in the space of a few months.  We  have  seen that  in  order to perform this enormous task,  an  Advisory Committee  composed  of representatives  of  various  public bodies  was formed to advise the Municipality  with  respect thereto  and,  the public were freely invited to  take  part therein.   Before  anything could be done, a survey  of  the area had to be made and a map thereof prepared.  Such a  map would  show  the already existing industrial  areas,  public amenities, roads and bridges and would give anybody  wishing to  find  out some idea as to the lines on which  the  deve- lopment of the city should proceed.  One would then have  to take  into  consideration  the  existing  roads,  industrial establishments  and public amenities already  there  because the  plan as emerging finally could not be made on  a  clean slate  but had to take into account already existing  things

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 23  

and the difficulties which would have to be met and overcome when  different parts of the area were to be  earmarked  for special  purpose.   Plans for various  sections  of  Greater Bombay  were  prepared with the assistance of  the  Advisory Committee.   The  tentative development plans in  this  case were displayed for public inspection during the year 290 1960-61.  Within a space of two years, therefore, the  local authority  had  some guidance in the matter of  granting  or refusing a commencement certificate for development work  of any   land  proposed  to  be  taken  up  by  any,,  of   the petitioners.  A reference to the tentative plans would  show whether  the  area within which the.  development  work  was proposed  to  be carried on was set  apart  for  industrial, commercial, residential or agricultural purposes, or whether it  was  to be set apart for public purposes.  It  might  be that as a result of the modification of the tentative  plan, the   area  which  at  first  fell  under  the   designation "residential" came to be included in the area designated  as "industrial" or even came to be embraced for designation for a public purpose. In  all such cases where large powers are given  to  certain authorities  the exercise whereof may make serious  in-roads into the rights of property of private individuals, we  have to  see whether there is any guidance to be  collected  from the Act itself, its object and its provisions, in the  light of the surrounding circumstances which made the  legislation necessary  taken  in conjunction with well  known  facts  of which the court might take judicial notice. We may in this connection refer to a judgment of this  Court in  Jyoti Pershad v. Administration for The Union  Territory of  Delhi(1).  The facts in that case were as follows.   The petitioner  who was the owner of a house containing  several rooms let out to different individuals, desired to  demolish the  same  and reconstruct it.  He submitted a plan  to  the Council  of  the Delhi Municipal Committee and  applied  for sanction  for  the reconstruction of the house.   After  the sanction  of the plan, he filed suits for eviction  of  nine tenants  under  s.  13(1)(g) of the  Delhi  and  Ajmer  Rent Control Act 38 of 1952.  In order to succeed in the suits he had  to show that he had a plan sanctioned by the  municipal authorities  which  made provision for the tenants  then  in occupation  of the house being accommodated in the house  as reconstructed  and that he had the necessary funds to  carry out the reconstruction.  The petitioner had no difficulty in establishing  these and he succeeded in getting decrees  for eviction.  The tenants however refused to give up possession and went up in appeal.  Ultimately, however, the  petitioner succeeded  in the appeals filed by the tenants.   Meanwhile, the  Slum Areas (Improvement and Clearance) Act 96  of  1956 was  enacted by Parliament and came into force in the  Delhi area.  S. 19(1) of that Act provided that:               "Notwithstanding  anything  contained  in  any               other  law  for the time being  in  force,  no               person  who has obtained any decree  or  order               for the eviction of a tenant from any building               in  a slum area shall be entitled  to  execute               such decree or order except with the  previous               permission   in  writing  of   the   competent               authority." [1962] 2 S.C.R. 125. 291 Under  sub-s.  (2)  every  person  desiring  to  obtain  the permission   referred  to  in  sub-s.  (1)  shall  make   an application  in  writing to the competent  authority  giving

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 23  

particulars  as  may be prescribed.  Under  sub-s.  (3)  the competent  authority  was bound to make  a  summary  enquiry after  giving an, opportunity to the tenant of  being  heard and then by order in writing either grant or refuse to grant it.  Under sub-s. (4) the competent authority must record  a statement showing brief reasons for such refusal.  The peti- tioner’s  application  under  s.  19  was  turned  down   by the,competent authority on the ground that the house was not in  such  a condition that it called for demolition  and  if sanction  was given the tenants would be thrown out  and  it would  be  impossible for them to get accommodation  in  the reconstructed building as they were very poor and not likely to  be able to pay the enhanced rent in respect of rooms  in Delhi.  The appeal by the petitioner to the Union  Territory was  dismissed mainly on the ground that if the  appeal  was allowed a large number of poor tenants from slum areas would be  evicted  and  as  the  property  itself  was  not  in  a dilapidated   condition   and  declared  unfit   for   human habitation,  permission  to evict the tenants could  not  be given.   The petitioner then moved this Court for the  issue of  a  writ  of  certiorari  to  quash  these  orders.   His complaint  was  that  s.  19 of  the  Act  was  invalid  and unconstitutional   and  violated  the  petitioner’s   rights guaranteed  by  Arts. 14 and 19(1)(f) of  the  Constitution. There  it  was  argued that s. 19(3) of the  Act  vested  an unguided, unfettered and uncontrolled power in an  executive officer  to withhold permission to execute a decree which  a landlord  had  obtained  after  satisfying  the   reasonable requirements of law as enacted in the Rent Control Act.   It was  further  urged that neither s. 19 of the Act  nor  any other  provision  of it indicated the grounds on  which  the competent  authority might grant or withhold  permission  to execute  decrees  and  the  power  conferred  was  therefore arbitrary and offended Art. 14 of the Constitution.  It  was further  urged  that there was an  excessive  delegation  of legislative  power as the executive authority could  at  its sweet will and pleasure disregard rights to property without any  guidance  from the legislature.  A  point  was  further raised  that such refusal might go on for an indefinite  and indeterminate  period  of time  affecting  the  petitioner’s right  to enjoy his property and imposing an  excessive  and unreasonable  restraint on his right.  The import and  scope of Art. 14 of the Constitution was examined in this case  at some length.  The Court examined the provisions of the  Slum Areas  (Improvement  and Clearance) Act and noted  that  the process  of slum clearance and re-development would have  to be  carried out in an orderly fashion if the purpose of  the Act was to be fulfilled and the policy behind it, viz.,  the establishment  of  slum  dwellers  in  healthier  and   more comfortable tenements so as to improve the health and morals of the community, was to be achieved.  Chapter VI of the Act which was headed "Protection of tenants in Slum 292 Areas  from  Eviction",  read  in the  light  of  the  other provisions of the Act made it clear that it was necessary to allow  the slum dwellers to remain in their dwellings  until provision was made for a better life for them elsewhere.  It was said:               "Though therefore the Act fixes no time  limit               during  which alone the restraint on  eviction               is to operate, it is clear from the policy and               purpose of the enactment and the object  which               it  seeks  to achieve  that  this  restriction               would  only  be for a period  which  would  be               determined   by  the  speed  with  which   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 23  

             authorities are able to make other  provisions               for  affording the slum dwellertenants  better               living  conditions.  The Act, no doubt,  looks               at  the problem not from the point of view  of               the landlord, his needs, the money he has sunk               in  the house and the possible profit that  he               might  make  if the house were either  let  to               other  tenants  or was reconstructed  and  let               out, but rather from the point of view of  the               tenants who have no alternative  accommodation               and  who would be stranded in the open  if  an               order for eviction were passed." Taking into consideration the entire provisions of the  Act, the Court observed:               "In  view  of the foregoing we  consider  that               there  is  enough guidance  to  the  competent               authority  in the use of his discretion  under               s. 19(1) of the Act and we, therefore,  reject               the contention that s. 19 is obnoxious to  the               equal protection of laws guaranteed by Art. 14               of the Constitution.  We need only add that it               was  not, and could not be, disputed that  the               guidance  which we have held could be  derived               from  the  enactment,  and  that  it  bears  a               reasonable  and rational relationship  to  the               object to be attained by the Act and, in fact,               would  fulfil the purpose which the law  seeks               to  achieve, viz., the orderly elimination  of               slums,  with interim protection for  the  slum               dwellers  until  they were moved  into  better               dwellings." The further objection that Parliament when enacting the  Act could  easily have indicated with reference to  the  several grounds  on  which  eviction could be  had  under  the  Rent Control   Act,  the  additional  restrictions   or   further conditions  which  would  be  taken  into  account  by   the competent authority, was met by saying:               "In  the context of modern conditions and  the               variety and complexity of the situations which               present  themselves  for solution, it  is  not               possible  for the Legislature to  envisage  in               detail  every possibility and  make  provision               for them.  The Legislature therefore is forced               to leave 293               the   authorities  created  by  it  an   ample               discretion  limited, however, by the  guidance               afforded   by  the  Act............  So   long               therefore as the Legislature indicates, in the               operative  provisions  of  the  statute   with               certainty,  the  policy  and  purpose  of  the               enactment, the mere fact that the  legislation               is skeletal, or the fact that a discretion  is               left to those entrusted with administering the               law,   affords   no  basis  either   for   the               contention  that  there  has  been   excessive               delegation  of legislative power as to  amount               to an abdication of its functions, or that the               discretion vested is uncanalised and  unguided               as  to  the  amount  to  a  carte  blanche  to               discriminate.  The second is that if the power               or  discretion has been conferred in a  manner               which  is legal and constitutional,  the  fact               that Parliament could possibly have made  more               detailed provisions, could obviously not be  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 23  

             ground for invalidating the law." The  other objection in that case that the power  vested  in the  competent authority at its sweet will and  pleasure  to refuse permission to execute a decree for eviction  violated the  right  to  hold property under  Art.  19(1)(f)  of  the Constitution, on the ground hat there were no principles  in the  Act  itself  to guide the competent  authority  in  the exercise of his will and pleasure was met by saying that the restrictions imposed would not be held to be unreasonable as               "the  ban  imposed on  eviction  is  temporary               though......... its duration is not  definite.               In  the very nature of things the period  when               slums   would   have  ceased   to   exist   or               restrictions  placed upon owners  of  property               could be completely lifted must, obviously, be               indefinite  and therefore  the  indefiniteness               cannot  be a ground for invalidity a  ground               upon which the restriction could be held to be               unreasonable." It  was further said that in considering the  reasonableness of the restriction:                "one has to take into account the fact-a fact               of which judicial notice has to be  taken-that               there  has  been an  unprecedented  influx  of               population  into  the capital, and in  such  a               short  interval, that there has not been  time               for natural processes of expansion of the city               to  adjust  itself  to  the  increased  needs.               Remedies  which  in  normal  times  might   be               considered an unreasonable restriction on  the               right  to  hold property would not  bear  that               aspect  or be so considered when viewed  in  a               situation   of  emergency  brought  about   by               exceptional  and unprecedented  circumstances.               Just as pulling down a build- 294               ing to prevent the, spread of flames would  be               reasonable  in  the  event  of  a  fire,   the               reasonableness of the restrictions imposed  by               the  impugned legislation has to be judged  in               the light of actual facts and not on a  priori               reasoning  based  on the  dicta  in  decisions               rendered  in situations bearing not  even  the               remotest  resemblance to that which  presented               itself to Parliament when the legislation  now               impugned was enacted." In  our  opinion, the observations made in  the  above  case apply  with  equal  force to the facts of  this  case.   The affidavits used show what an enormous increase of population has taken place in Bombay in recent years.  One cannot  lose sight  of  the  fact that the growth of  the  city  and  the industrialisation of its surroundings are going on apace and if factories are allowed to be set up just where the, owners of certain plots of land want to erect them, it could render large  areas  unfit for residential purposes.  In  the  area covered by Greater Bombay, the municipal authorities have to proceed with caution when sanctioning any development  work. It  is well known that a master plan for Greater Bombay  was prepared even before the Act came into force but by the time the  Act was enacted the same was found to be out  of  date. The preparation of a development plan for Greater Bombay was an  immense task and the authorities proceeded with it in  a manner  to which no exception can be taken.  They formed  an Advisory  Committee, prepared a tentative  development  plan and  ultimately the development plans for  different  wards.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 23  

At all stages, suggestions and objections were received and, wide publicity was given to the steps which were being taken from  time to time.  Although s. 12 does not in terms  state the  grounds on which the permission of the local  authority to  sanction development work may be withheld, it  is  clear that  the  authority  had to proceed on  the  basis  of  the tentative plan.  The legislature was aware that a good  deal of time might elapse before the Development Plan was finally sanctioned and that is why provision was made for  extension of  the period of four years, if need be from time to  time. After a declaration under s. 4 is made, the map is published under  r. 3 and the suggestions are received, the  municipal authorities  must consider in the light of  material  before them as to whether the intended building operations ought to be sanctioned or not.  Once the development plan was  before it,  of  course, there was no difficulty.  In  our  opinion, there was enough guidance in the Town Planning Act to enable the  Municipal  Commissioner to come to a conclusion  as  to whether  a  particular commencement  certificate  should  be granted or not and the power exercisable under the  sections was  neither uncanalised nor arbitrary.  In all  these  four petitions,  reasons  were given as to why  the  commencement certificate  was  withheld.  It may be that  the  reason  at first  given  was  not adhered to later  on,  but  that  was because by then the plan had undergone a modification. 295 With  regard to the complaint that the period of  ten  years fixed  under  s.  II (3) of the Act was  too  long,  and  an unreasonable  restriction on the rights of a land  owner  to deal  with his land as he pleased, it is enough to say  that in  view  of  the  immensity  of  the  task  of  the   local authorities  to find funds for the acquisition of lands  for public purposes, a period of ten years was not too long.  In this case, the authority had to deal with an area  measuring about 169 sq. miles or roughly an area measuring 17 miles  X 10 miles which is larger than most of our big cities without their  suburbs.  The preparation of a development  plan  for such an area must take a considerable period of time. We  may also point out that this is not the  first  occasion when  the validity of this Act has been called  in  question before  this Court.  In Manecklal Chhotalal & Ors. v. M.  G. Makwana  and Ors.(1), objections were taken with  regard  to the  Town  Planning  Scheme  No.  19  (Memnagar),  Ahmedabad prepared  under the Act as amended by the Gujarat  Amendment and  Validating Act, LII of 1963.  There the declaration  of intention  to prepare a town planning scheme was made  under s.  22(1)  of the Act in respect of certain  areas  of  land which  included some lands of the petitioners.  On June  13, 1960,  a  draft Town Planning Scheme was prepared  under  s. 23(1) and it was published in the Gujarat Government Gazette dated  June 23, 1960.  The petitioners submitted  objections and  suggestions before the Town Planning Committee.   After consideration  of the same, the second respondent  forwarded the Town Planning Scheme to the third respondent, the  State of Gujarat, under s. 28(1) of the Act.  The third respondent sanctioned  the draft scheme and appointed a  Town  Planning Officer.   This  officer issued a public notice  in  October 1961  inviting  objections and suggestions  from  owners  of land.   The petitioners again filed objections  in  November 1961  before  the Town Planning Officer and here  also  they reiterated  the same objections and suggestions  which  they had placed before the Town Planning Committee at the earlier stage, and before the second respondent later.  In the first notice issued by the Town Planning Officer, it was mentioned that the petitioners were being allotted new plots measuring

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 23  

19,087  sq. yards as against two plots measuring 56,164  sq. yds.  It was stated that the value of the original plots was Rs.  37,556  and  of the new plots Rs. 14,315  and  that  in consequence,  the petitioners were entitled to  compensation of Rs. 23,241.  The notice further stated that the value  of plots  which were being allotted as new plots, after  taking into account the improvements in the scheme was Rs. 1,35,590 and  after  deducting  the  price  of  those  plots  without reference to the improvements, viz., Rs. 14,315 the increase under  s. 65 of the Act was Rs. 1,21,275.  The,  petitioners were therefore liable to pay contribution at the rate of  50 % on the increment under s. 66 i.e. Rs. 60,638 (1) [1967] 3 S.C.R. 65. 296 and  after giving credit to them for the sum of  Rs.  23,241 they  were  called upon to pay Rs. 37,397.  There  was  some alteration  in  this  and ultimately  the  petitioners  were informed that in lieu of plot 22 measuring 37,873 sq.  yards they were allotted plots measuring 20,123 sq. yards and  the value  under  S.  67  was fixed at  Rs.  8,222.   The  final position  under these two notices was that  the  petitioners were  getting  land  of an extent of  35,558  sq.  yards  as against the original extent of 70,180 sq. yards and they had to pay a sum of Rs. 73,867 as contribution. The  main contention urged on behalf of the petitioners  was that the State Legislature was not competent to pass the Act as  it was not covered by any of the entries in List  11  or List  111, of the Seventh Schedule to the Constitution;  and even assuming that the State Legislature could pass the Act, nevertheless,   its   provisions  regarding  the   levy   of contribution  towards the cost of the Scheme and  all  other matters   relating  to  the  working  of  the  scheme   were unauthorised and unreasonable and that the powers vested  in the  Town Planning Officer and other authorities  under  the Act  were unguided, arbitrary and uncontrolled and  as  such infringed  the fundamental rights of the  petitioners  under Arts. 14, 19(1)(f) & (g) and 31 of the Constitution. It  will be noticed that there is a good deal of  similarity between   that  application  and  the  present   series   of applications  although the objections raised are  not  quite the  same.  In that case the Court examined the Act and  the scheme  including  ss. 3 to 17 in Chapter  11  dealing  with development plans.  As noted already, Chapter III deals with the  making  of Town Planning Scheme and the contents  of  a Town  Planning Scheme and Chapter IV deals with  declaration of intention to make a scheme and making of a draft  scheme. Chapters  IV,  V,  VI, VII and IX were  considered  in  some detail  as also r. 3 relating to the publication of the  de- claration  under s. 4 and r. 4 dealing with the  publication of the development plan.  The Court noted after referring to the  sections and the rules that a perusal  thereof  clearly showed that elaborate provisions had been made for giving as wide  a publicity as possible, at all stages, to the  public and  to  owners of land who may be affected by  the  scheme. They  provided for objections which were being heard by  the authorities  concerned.  The objection that  unfettered  and arbitrary  power was vested in the Town Planning Officer  in the  matter of deciding various points covered by s.  32  of the Act was turned down.  Ultimately, the Court said:               "........ having due regard to the substantive               and procedural aspects, we are satisfied  that               the Act imposes only reasonable  restrictions,               in which case, it is saved under Art. 19(5) of               the Constitution.  The considerations referred               to above will also show that the grievance  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 23  

             the  petitioners that Art. 14 is violated,  is               also not accept,able." 297 In  our opinion, apart from the aspect of the question  that the Act has been found, after consideration of its different sections,  to be a valid enactment, we are not impressed  by any of the arguments raised before us.  The argument that  a person  was given no opportunity of meeting  the  objections raised by others with regard to the development plan has  no force in the light of the facts disclosed in the affidavits. After  all it is for the authority concerned to prepare  the plan  after  hearing  all the  parties  concerned.   If  the authorities were to hear all the parties with regard to  all the  suggestions made giving them separate  and  independent hearings,  no development plan could ever be prepared.   The authority was not concerned with considering the  advantages or  disadvantages which might accrue to a particular  person or a group of persons owning lands in different parts of the area  concerned, but it had to go by the larger interest  of the  population at large and the generations to  come.   The affidavits   show   that  nothing  was   done   haphazardly. Suggestions  and  objections at all  stages  were  carefully considered.   The  assistance of committees of  experts  was taken and the plan emerged, only after an immense amount  of labour had been bestowed on its preparation. The  second  argument that s. 13 of the Act gave  an  uncon- trolled  and  uncanalised power to the  local  authority  to refuse a commencement certificate arbitrarily cannot also be accepted.  As already noted, the development of an area like Greater  Bombay  has  to  be  guided  and  channeled  in   a particular  manner  following  well-defined  plans.   Public amenities  have  to be provided, for-, lands set  apart  for public  purposes  to be acquired by local  authority  to  be considered;  industrialisation of the areas to be guided  in the view of the industries already existing, their  probable demands  in future spacing out and such like  objects.   The help  of various associations was taken and  suggestions  of the public received and discussed by an Advisory  Committee. Before  the finalisation of the development plan, there  was already a tentative plan by which the local authority had to guide  itself.  After a development plan was  prepared,  the question  was  a simple one as to whether  the  commencement certificate  could be given without doing any  violation  to the  development  plan.  The fact that no  appeal  from  the decision  under  s. 13 was provided for is a  matter  of  no moment  for  the authority under s. 13 is no less  than  the Municipal  Commissioner himself or the Chief Officer of  the Municipal  Borough  or a person exercising the power  of  an Executive  Officer of any local authority.  When  the  power had  to be exercised by one of the highest officers  of  the local,  authority intimately connected with the  preparation of  the development plan in all its stages, it is  difficult to envisage what other authority could be entrusted with the work  of  appeal  or  revision.   The  preparation  of   the tentative  plan  or  the  final  development  plan  was  not something  which was left to the pleasure or  discretion  of the  local  authority.  Immense pains were taken by  a  vast number of 298 people and it was their combined effort and skill which went to  the  making  of the development  plan  preceded  by  the tentative  plan.  S. 13 prescribes that the local  authority should  make  an  inquiry  before  granting  or  refusing  a commencement certificate.  The Authority must therefore look into  all material available to it including  the  tentative

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 23  

plans  and the final development plan and then make  up  its mind  as  to whether a commencement  certificate  should  be granted  or not.  If the provisions of the Act are borne  in mind  and  the  rules framed thereunder  complied  with,  as appears  to have been done in these cases, there was  little or no scope for the local authority acting arbitrarily under s. 13 of the Act. We  have  already noted that the  authority  concerned  com- municated  to  the petitioners in Writ Petition No.  228  of 1966 as to why their prayer for the issue of a  commencement certificate  could not be granted.  The facts in  the  other writ  petitioners  are on a close parallel.   We  also  find ourselves unable to accept the third contention that by  the combined  operation of ss. 4 and 11(3) of the Act the  local authority  could  protract  the  acquisition  of  any   land designated  for  a public purpose under s. 7 of the  Act  at least  for 14 years and thereafter indefinitely.  A  similar argument  was put up before this Court in the case of  Jyoti Pershad   v.  Administrator  for  The  Union  Territory   of Delhi(1).   The  argument  there  put  up  about   excessive delegation of legislative power to an executive authority to disregard rights to property of a person who had obtained  a decree  for  eviction indefinitely was turned down  by  this Court.  There it was said that the restriction of the  power of  eviction would have to be determined by the  speed  with which  the  authorities  were able to  make  provisions  for affording  the slum dwellers better living  conditions.   No one  can  be  heard to say that the  local  authority  after making up its mind to acquire land for a public purpose must do  so  within as short a period of time  as  possible.   It would  not be reasonable to place such a restriction on  the power  of the local authority which is out to create  better living  conditions  for millions of people in a  vast  area. The finances of a local authority are not unlimited nor have they the power to execute all schemes of proper  utilisation of  land set apart for public purposes as  expeditiously  as one  would like.  They can only do this by  proceeding  with their scheme gradually, by improving portions of the area at a  time, obtaining money from persons whose lands  had  been improved and augmenting the same with their own resources so as to be able to take up the improvement work with regard to another area marked out for development.  The period of  ten years  ,fixed at first cannot therefore be taken to  be  the ultimate  length of time within which they had  to  complete their work.  The legislature fixed upon this period as being a reasonable one in the circumstances obtaining at the  time when the statute was enacted. (1)  [1962] 2 S.C.R. 125. 299 We  cannot further overlook the fact that  modifications  to the  final  development plan were not beyond  the  range  of possibility.   We  cannot therefore hold that the  limit  of time  fixed  under  s.  4  read  with  s.  11(3)  forms   an unreasonable  restriction on the rights of a person to  hold his property. Towards  the end of the hearing counsel for the  petitioners submitted  that  s.  17  of the Act might  be  left  out  of consideration for the purpose of these petitions and learned counsel  for the respondents were agreeable to this  course. We therefore do not express our views about the validity  or otherwise of this section. In our opinion the objections raised as to the invalidity of ss. 9, 10, 11, 1.2 and. 13 cannot be upheld. As the petitioners have failed in their attempt to establish any   violation  of  their  fundamental  rights  under   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 23  

Constitution,  the  petitions will all  be  dismissed.   The petitioners will pay one set of costs. R.K.P.S.          Petitions dismissed. 300