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PETITIONER: MANEKLAL CHHOTALAL & ORS.

       Vs.

RESPONDENT: M.   G. MAKWANA & ORS.

DATE OF JUDGMENT: 02/03/1967

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAO, K. SUBBA (CJ) SHAH, J.C. SIKRI, S.M. RAMASWAMI, V.

CITATION:  1967 AIR 1373            1967 SCR  (3)  65  CITATOR INFO :  RF         1968 SC 303  (31)  RF         1977 SC2279  (27)  RF         1981 SC1597  (3)  RF         1986 SC 468  (20)  R          1988 SC1708  (15)

ACT: Constitution of India, 1950, Arts. 14, 19 and 31; and Seven- th  Schedule,  List  II Entry 18, and List  III,  Entry  20- Competency  of  State  Legislature  to  enact  Bombay   Town Planning  Act  (27 of 1955)-Act as amended  by  Bombay  Town Planning  (Gujarat Amendment and Validating Provisions)  Act (52 of 1963), if violative of fundamental rights.

HEADNOTE: The  Ahmedabad Municipal Corporation published, under s.  22 of the Bombay Town Planning Act, 1954, a declaration of  its intention  to  make  a town planning scheme  in  respect  of certain  areas which included the lands of the  petitioners. The petitioners submitted their objections and  suggestions. A draft Town Planning Scheme was published thereafter  under s.  23  (1)  and the petitioners again  submitted  the  same objections.    After   considering   the   objections    and suggestions,  the  draft scheme was forwarded to  the  State Government under s. 28(1).  The State Government  sanctioned the  scheme  under s. 28(2) and appointed  a  Town  Planning Officer under s. 31(1).  He issued a public notice  inviting objections  and  suggestions  from owners of  land  and  the petitioners reiterated their objections.  The Town  Planning Officer, thereafter, -aye his decision under s. 32 regarding the  value of the land originally owned by the  petitioners, the  extent  of  reconstituted land allotted  to  them,  the compensation payable to them, the value of the land allotted to  them taking into account the improvements in the  Scheme and the net amount payable by the petitioners as their share of  the contribution towards the cost of the Scheme.   As  a result of the decision, the petitioners were allotted a much smaller  extent of land than they originally owned and  were directed  to  pay certain sums as their share  of  the  con-

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tribution.   On  appeal  under s. 34  the  Board  of  Appeal slightly reduced the amount payable by the petitioners.  The petitioners  thereupon filed a writ petition in  this  Court and  contended  that  : (1) the State  Legislature  was  not competent  to enact the statute, and (2) the  provisions  Of the  Act, by conferring arbitrary powers on the  authorities functioning  under the Act and by depriving the  petitioners of theirproperty,infringed their fundamental rights  under Arts. 14, 19(1)(f) and 31. HELD  :  (1) The heads of legislation in the  Lists  of  the Seventh Schedule to the Constitution should be given a large and  liberal interpretation unless cut down by the terms  of the item itself or by other part,,; of the Constitution,  so that,  they  may  have effect  in  their  widest  amplitude. Therefore, the various aspects dealt with in the Act can  be considered  to deal with "land" in Entry 18 of List  II  and the competency of the State Legislature can be found in that entry. [78 F-G; 79 A, C-D, G] Navinchandra Mafatlal V. Commissioner of Income-tax,  Bombay City, [1955] 1 S.C.R. 829, Sri Ram Ram Narain Medhi v. State of Bombay [1959] Supp. 1 S.C.R. 489 and Atma Ram v. State of Punjab, [1959] Supp.  1 S.C.R. 748, followed, 66 The  Act is a legislation to consolidate and amend  the  law for  the making and execution of town planning  schemes  for the  healthy  and orderly development of the area.   With  a view to achieve that purpose, a very elaborate procedure and machinery   is  prescribed  in  the  Act.   Therefore,   the competency of the State Legislature could also be rested  on Entry  No.  20 of List III, which deals with  "Economic  and Social Planning". [79 G-H; 80 H] (2)The  Act and the Rules make very  elaborate  provisions regarding  the  formalities  to be gone  through,  at  every stage,  by  the local authority, the  State  Government  and other  authorities concerned in preparing and  making  final the  Town  Planning Scheme.  At all stages, very  wide  pub- licity  is given to the proposals.  Provision has been  made for  the filing of objections and suggestions and a duty  is cast  on  the authorities to take them  into  account.   The procedure to be adopted by the Town Planning Officer in  the matter  of giving his decisions on the various  aspects  has been indicated in s. 32 and in the Rules made under the Act. Principles have also been laid down regarding the fixing  of the value of the original and the reconstituted plots.,  and for fixing the amount of contribution payable by the various owners  of  land.   The contribution  was  payable  in  easy instalments and was towards the cost of the scheme which the local authority had to incur and was not a tax or fee.   All important  decisions  of  the  Town  Planning  Officer   are appealable to a Board of Appeal presided over by a  Judicial Officer of the status of a District Judge, and the procedure to be adopted by the Board is also clearly indicated in  the Act  and  Rules.   Therefore,  the Act  does  not  vest  any arbitrary  or  unguided power in the  authorities  and  only imposes reasonable restrictions on the petitioners’ right to hold  property.  Hence, the Act is not violative of Art.  14 and is saved by Art. 19(5). [71 C-D; 82 A-D, H; 83 A-B, G] The  petitioners have no doubt lost a large extent of  land. But.  having  due regard to the scheme of the  Act  and  the object  sought to be achieved, such results are  inevitable. Moreover,  the reconstituted plots, though of a lesser  area have a higher value in view of the various improvements, and so  what the petitioners lost in actual area had  been  more than  sufficiently  compensated  by  the  increased   value. Therefore,,  there  is  no question of  any  deprivation  of

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property so as to attract Art. 31. [83 D-F]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 64 of 1966. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. B.  Sen  Tricumlal  J.  Patel and  I.  N.  Shroff,  for  the petitioners. H.  D. Banarjee, R. Ganapathy lyer, R. H. Dhebar and  S.  P. Nayyar, for respondents Nos. 1, 3 and 4. Purshottam Tricumdas, Vithalbhai Patel, O. C. Mathur, J.  B. Dadachanji and Ravinder Narain, for respondent no. 2. D. R. Prem and S. P. Nayyar, for the intervener. The Judgment of the Court was delivered by Vaidialingam, J. In this writ petition, under Art. 32 of the Constitution,  the petitioners challenge the  constitutional validity 67 of  the Bombay Town Planning Act, 1954 (Bombay Act XXVII  of 1955)  (hereinafter called the Act), as  originally  framed, and  also after its amendment, by the Bombay  Town  Planning (Gujarat  Amendment  and Validating  Provisions)  Act,  1963 (Gujarat  Act LII of 1963) (hereinafter called the  Amending Act).   They  also challenge and seek to have  quashed,  all action   and  proceedings  that  have  been  taken  by   the respondents, under the Act, in relation to the Town Planning Scheme, No. 19 (Memnagar), Ahmedabad. The  circumstances under which the petitioners have come  to this  Court may be briefly indicated.  The petitioners,  who are stated to be members of a Hindu Undivided Family,  owned certain extent of lands in two areas viz., Usmanpur  Section and Wadej Section.  In the former, they claim to have  owned lands bearing survey numbers 41/1, 41/2 , 42, 51/1, 51/2 and 43,  referred to as plot nos. 22 and 22-A, measuring  56,164 sq.  yds.   In Wadej Section, again, they owned  14,520  sq. yds, in survey nos. 106, 3/1, 106/4, referred to as plot no. 195.  Both these Sections are within the jurisdiction of the second   respondent   herein,   the   Ahmedabad    Municipal Corporation. The  second respondent, by resolution No. 475, dated  August 20,  1959,  declared its intention to make a  Town  Planning Scheme  No.  19 (Memnagar), under s. 22(1) of  the  Act,  in respect of certain areas of land, which included the  above- mentioned  lands of the petitioners.  The  said  declaration was  published  in  the  Bombay  Government  Gazette,  dated September  3, 1959.  A notification was issued  on  November 16, 1959, stating that the second respondent was preparing a Draft  Town  Planning Scheme, and  stating  that  interested persons  may appear before the Town Planning  Committee,  on December  2, 1959, at 4 p.m., for the purpose of having  the proposals  contained in the Scheme explained to  the  public and  to  elicit suggestions from the public with  regard  to those, proposals. The  petitioners  appeared  before the  said  Committee,  on December  2, 1959, and raised certain objections,  and  also offered some suggestions for modifying the Scheme.   Written objections  were  also submitted by the petitioners,  on  or about January 9, 1960. to the Town Planning Committee.   The petitioners pointed out that in Usmanpur and Wadej  Sections they owned lands to the extent, approximately, of 70,180 sq. yds., but in the proposals as contained in the Draft Scheme, they were expected to get only 19,087 sq. yds. and, as such, they  stood to lose nearly 72 % of their lands.   They  also

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pointed  out that they had been made liable to pay  a  heavy contribution  of Rs. 30,13’//-.  The  petitioners  suggested that  the  loss  to each  land-owner,  should  be  equitably distributed  under  the  Scheme  and  that  they  should  be allotted lands of equal extent. 68 On June 13, 1960, a Draft Town Planning Scheme was prepared, under  s.  23(1) of the Act, and it was  published  in  the, Gujarat Government Gazette, dated June 23, 1960.  The  peti- tioners,   again,   submitted  the   same   objections   and suggestions, which they had placed for consideration, before the   Town  Planning  Committee.   After   considering   the objections  and  suggestions made by  the  petitioners,  the second  respondent forwarded the Draft Town Planning  Scheme to the third respondent, the, State of Gujarat, under s. 2 8 (  1 ) of the Act.  The third respondent, again,  sanctioned the  said Draft Scheme, under S. 28(2) of the Act  and  also appointed  a  Town Planning Officer, under s. 31(1)  of  the Act.   Subsequently, there was a change in the personnel  of the    Town   Planning   Officer,   originally    appointed. Ultimately, the Town Planning Officer issued a public notice in  October 1961, inviting objections and  suggestions  from owners  of  lands in respect of the  Draft  Town.   Planning Scheme, which was being considered by him. The  petitioners, again, filed objections in November  1961, before  the said 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 Draft Scheme prepared by the second respondent,  and sanctioned by the State of Gujarat, the petitioners’  lands, survey  nos. 41/1, 41/2, 5111, 51/2 (being plot no. 22)  and survey  no. 43 (being plot no. 22A) were shown as  item  no. 18, and lands, survey nos. 106, 3/1 and 106/4 (plot no. 195) were  shown  as  item no. 163.  The  Town  Planning  Officer issued  notices in April and June 1962, to the  petitioners. In  the first notice, it was mentioned that the  petitioners were being allotted new plots, nos. 32, 34 and 43, measuring 19,087 sq. yds as against plots nos. 22 and 22-A,  measuring 56,164  sq. yds.  It was also stated that the value  of  the original plots nos. 22 and 22-A, was Rs. 37,556/-and of the new  plots nos. 32, 34 and 43, was Rs. 14,315/-and that,  in consequence, the petitioners were entitled to apayment of compensation, under s. 67, in the sum of Rs. 23,241/-.   The notice  further stated that the value of plots nos.  32,  34 and  43, 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  a contribution,  under  s.  66,  at the rate  of  50%  on  the increment,  viz., Rs. 60,638/-; and after giving  credit  to the  petitioners,  in  the sum of Rs.  23,241/-,  they  were called upon to pay a sum of Rs. 37,397/-. 69 The second notice also mentioned that, as against the  peti- tioners’  plot no. 195, measuring 14,520 sq. yds., no  other plot  was being allotted to them and that  the  compensation payable  to  them  in  respect of  the  said  plot,  without reference  to  the  ’improvements in  the  Scheme,  was  Rs. 7,260/-.   By virtue of these two notices,  the  petitioners were  being allotted fresh plots of an extent of 19,087  sq. yds., and they were called upon to pay a sum of Rs. 30,133/- ,  as  their  share  of contribution,  and  they  were  also required to furnish their objections or suggestions,  within

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the  time  specified.  The petitioners filed  their  written objections  to  the  proposals contained  in  the  said  two notices;  and they also appeared on the dates  mentioned  in the  notices and reiterated the matters contained  in  their written objections. The  first  respondent herein, the  Town  Planning  Officer, issued on January 20, 1965, two communications, stated to be his award, under s. 32(3) of the Act.  In the first of these communications,  the petitioners were informed that in  lieu of  their plot no. 22, measuring 37,873 sq. yds., they  were allotted  Final Plots nos. 52, 54 and 57,  measuring  20,183 sq.  yds.,  and  the value, under s. 67  was  fixed  at  Rs. 8,222/-.   The  petitioners  were  also  informed  that  the calculation  of  increment of the value of  20,183  sq.  yds allotted  to them, under s. 65, was Rs. 1,08,483/-  and,  at the  rate of 50%, as per s. 66 of the Act, they were  liable to pay a contribution of Rs. 54,241/-.  After adjusting  the value  of  the lands, of Rs. 8,424/,  the  net  contribution payable by the petitioners was stated to be Rs. 45,817/-. Similarly, in the second communication, the petitioners were informed  of the allotment of final plot no.  94,  measuring 15,375  sq. yds, as against plot nos. 22A and 195  measuring in  the  aggregate  32,307 sq. yds.   The  petitioners  were further  informed that for the loss of 16,932 sq. yds.  they would be entitled to compensation under s. 67, in the sum of Rs.  4,622/-.  The calculation of increment, with  reference to improvement in respect of the final plots allotted as per s.  65, was stated to be Rs. 65,344/-.  In consequence,  the share   of  contribution,  under  S.  66,  payable  by   the petitioners at the rate of 50%, was fixed in the sum of  Rs. 32,672/-.   Adjusting  the  sum of Rs.  4,622/-.  being  the compensation   payable   to  the  petitioners,   their   net liability,  as  contribution, was fixed in the  sum  of  Rs. 28,050/-. The  final position, under these two notices, was  that  the petitioners  were  getting land of an extent of  35,558  sq. vds., as against the original extent of land of 70,1 80  sq. yds.,  and  they  had  to pay a  sum  of  Rs.  73,867,/-  as contribution. The  petitioners preferred appeals to the Board  of  Appeal, under s. 34 of the Act.  The Board of Appeal reduced the 70 increased  value  of  the final plots by  giving  a  general reduction  of 60 paise per square yard.  As a result of  the appeal, the petitioners had still to pay a contribution of a sum  of Rs. 63,199/-, apart from losing 34,622 sq. yds.,  of land.  The Town Planning Officer made consequential  changes in  his  original award, incorporating the decision  of  the Board and forwarded the final Scheme to the State Government for  its  sanction.  It is, at that stage,  the  petitioners have  come  to  this Court, seeking  the  reliefs  mentioned above. The  main contentions raised by Mr. B. Sen, learned  counsel for the petitioners, are: (i) The State Legislature was  not competent  to pass the Act as the subject, dealt with  under the Act, is not covered by any of the entries in List 11, or List 111, of the Seventh Schedule to the Constitution.  (ii) Even assuming that the State Legislature could pass the  Act in question, nevertheless, the provisions regarding the levy of contribution towards the cost of the Scheme and all other matters   relating  to  the  working  of  the  scheme,   are unauthorised and unreasonable and that the powers vested  in the Town Planning Officer, and the other authorities,  under the  Act,  are  unguided, arbitrary  and  uncontrolled  and, therefore,   the   provisions  of  the  Act   infringe   the

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fundamental rights of the petitioners under Arts. 14,  19(1) (f) & (g), and 31 of the Constitution. On  behalf  of the State, the third respondent,  Mr.  H.  D. Banarjee,  learned counsel, has pointed out  that  the-State Legislature  was competent to pass the Act in question.   In particular, he supports the competency of the Legislature to enact the measure in question, on the basis of Entries  nos. 6  and 18 of List II, and Entry no. 10 of List 111,  of  the Seventh  Schedule.   Counsel also points out  that  a  local authority,  with a view to achieve a systematic  and  proper planning,  providing amenities like water-supply,  drainage, roads, etc., has been empowered to go in for a town planning scheme.  After providing for these amenities, and  allotting sites for public purposes like schools, hospitals,  markets, police-stations etc., the remaining lands are re-constituted by  changing  their boundaries in order to  make  the  areas capable of being properly developed.  Re-constituting of the plots is absolutely necessary inasmuch as in working out the Scheme,  some  area from an adjoining land may  have  to  be added and some other area from the original holding may have to  be taken away, as may be necessary, and to  achieve  the purposes  for which a planned development scheme is  framed. As far as possible, each owner of land is given a new  plot, though it may not be of the same extent or in the same area, And,  in exceptional cases, when the owner loses  a  holding alto-ether, he is awarded cornpensation. 71 By  reference  to the Act and the rules  framed  thereunder, counsel pointed out that elaborate provisions have been made as to how the local authorities, in framing the Scheme,  had to  function.  as also how the Town  Planning  Officer,  who works  the  Scheme,  has  to  act.   Opportunity  had   been provided,  at every stage, right from the beginning  to  the end,  counsel  points out, to owners of property,  like  the petitioners, to place their objections and suggestions.  The petitioners also had taken advantage of those provisions and had  been  heard and their objections considered.   All  the important  decisions of the Town Planning Officer  are  made the  subject of appeals to a Board of Appeal, of  which  the President is an- experienced judicial officer of the  status of a District Judge.  Principles had also been laid down  by the  Act regarding the fixing of valuation of  the  original plots and the -reconstituted plots and for fixing the amount of contribution payable by parties.  Payment of contribution was  to  be in easy instalments.  None  of  the  fundamental rights  of  the petitioners, according to Mr.  Banajee,  bad been affected. These  contentions of the State have been supported  by  Mr. Purshottam  Tricumdas,  learned counsel  appearing  for  the Ahmedabad  Municipal  Corporation,  the  second   respondent herein. This  will be a convenient stage to refer to the  scheme  of the  Act and consider the question as to whether  the  State Legislature is competent to enact this legislation, because, if the contentions of the learned counsel for the petitioner that  the State Legislature had no competence to enact  this measure  is  accepted,  no other questions  will  arise  for consideration. There  was. originally, an Act called the Bombay Town  Plan- ning  Act, 1915 (Bombay Act I of 1915), which has  been  re- pealed by s. 90(1 ) of the Act.  The object of the 1915  Act is stated to be ’to provide for the making and execution  of town planing schemes’.  The preamble to the said legislation stated  that it was found expedient that the development  of certain areas should be regulated with the general object of

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securing proper sanitary conditions, amenity and convenience to  the  persons living in such areas  and  in  neighbouring areas.   We  only  refer to the 1915  Act  for  the  limited purpose of showing that the said Act was conceived with  the intention of regulating the development of certain areas for the purpose of securing proper sanitary conditions etc..  to the  persons  living  not only in such areas,  but  also  in neighbouring areas. The  Act came into force on April 1, 1957, and, there is  no controversy,  that it has been made applicable to the  State of  Gujarat.   In some respect the Act was  amended  by  the Amend- 72 ing  Act of 1963.  The Act is a legislation  to  consolidate and  amend  the  law for the making and  execution  of  town planning schemes, and, in order to ensure that town planning schemes  are made in a proper manner and their execution  is made effective.  Sub-sections (2), (4), (6) and (9) of S. 2, define   the   expressions   ’development   plan’,    ’local authority’, ’plot’ and ’reconstituted plot’.  In particular, the expression ’reconstituted plot’ means a plot which is in any way altered by the making of a town planning scheme. Sections  3  to  17, in Chapter 11,  deal  with  development plans.   Section 3 makes it obligatory on a local  authority to  carry out a survey of the area within  its  jurisdiction and  to  prepare and publish, in the  prescribed  manner,  a development  plan  and  to  submit the  same  to  the  State Government  for  sanction.  Sub-section (4) of  s.  3  gives power to the State Government to prepare and publish, in the prescribed manner, a development plan, in the  circumstances mentioned  therein.   Section  4  provides  for  the   local authority making a declaration of its intention to prepare a development  plan,  before  carrying out a  survey  for  the purpose  of preparing the said plan, and a copy of the  said declaration  is  to  be sent to  the  State  Government  for publication  in  the  Gazette.  It also  .provides  for  the declaration being published in the prescribed manner and for inviting  suggestions from the public within two  months  of the date of publication.  A copy of the development plan  is to be sent to the State Government and another copy is to be made  available, by the local authority, for  inspection  by the  public.   Under  s.  7, the  development  plan  has  to indicate the manner in which the development and improvement of the area is to be carried out and regulated, and it shall contain the proposals mentioned in clauses (a) to (e).   The particulars  referred  to in s. 8 have to be  published  and submitted   to   the  State  Government,  along   with   the development   plan.   Section  9  provides  for  the   local authority  considering any suggestions that may be  made  to such development plan, by any member of the public, if those suggestions  are communicated in writing, within two  months from the date of publication.  Section 10 gives power to the State Government, after consulting the Consulting  Surveyor, to  sanction  the development plan submitted to  it  by  the local  authority, either without modification or subject  to such  modification as it considers necessary.  The  sanction of  the State Government has to be notified in the  Official Gazette.   Section II gives power to the local authority  to acquire  either by agreement or under the  Land  Acquisition Act of 1894, any land designated in the development plan for a  Purpose specified in clauses (b) to (e) of s. 7. The  re- maining  sections  in  Chapter 11, deal  with  matters  like placing restriction on an owner doing any work on the  land, after  publication of the declaration of intention under  s. 4(1),  and  the local authority granting permission  to  the

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owners concerned. 73 Chapter III, comprising ss. 18 to 20, deals with the  making of  and the contents of a town planning scheme.  Section  18 provides for a local authority, subject to the provisions of the  Act,  or  any other law for the time  being  in  force, making one or more town planning schemes for the purpose  of implementing   the   proposals  contained   in   the   final development plan.  The town planning scheme can provide  for any of the matters mentioned in cls. (a) to (1) referred  to in  sub-s. (2) of s. 18.  Section 19 relates to  a  decision being  given  by  the Town  Planning  Officer,  relating  to disputed ownership of the properties comprised in the scheme but it is made clear that any decision given by him,  though not  subject  to  appeal, shall not operate as a  bar  to  a regular  suit.   It also makes provision  for  any  decision given  on this question by the Town Planning  Officer  being corrected,  modified  or rescinded in the event of  a  Civil Court  making an adjudication.  Section 20, is  an  enabling provision  for the purpose of making or executing  any  town planning scheme. Sections 21 to 30, which occur in Chapter IV, deal with  the declaration of intention to make a scheme and the making  of a draft scheme.  A Town Planning Scheme, under s. 21, may be made,  in  accordance  with the provisions of  the  Act,  in respect of a land which is in the course of development,  or is  likely to be used for building purposes, or  is  already built  upon.   Section 22 authorises a  local  authority  to declare  its  intention to make a town  planning  scheme  by resolution.    The  local  authority  is  to   publish   its declaration,  within the time mentioned therein; and  it  is also  bound  to  despatch  a  copy  thereof  to  the   State Government,  along  with a plan showing the  area  which  it proposes  to  include in the. scheme.  Sub-s. (4) of  s.  22 provides for a copy of the plan being made available to  the public  for inspection.  Section 23 provides for  the  local authority, in consultation with the Consulting Surveyor,  to make a draft scheme within twelve months of its  declaration of intention and publish the same in the prescribed  manner. Section  24  gives  power to the State  Government,  in  the circumstances   mentioned  therein,  to  require   a   local authority to make and publish a draft scheme and send it  to the  Government  for  approval.  Section  25  specifies  the various particulars which a draft scheme should contain Section  26 provides that in the draft scheme, the size  and shape  of  every reconstituted plot is to be  determined  in such a manner as to make it suitable for building  purposes. If  the  plot is already built upon, it  provides  that  the reconstitution  is  to ensure that the building, as  far  as possible,  complies  with the provisions of  the  scheme  as regards  open spaces.  Sub-section (2) of s. 26  specific.,, the  nature of proposals, to be found in the  draft  scheme. In  particular, it provides for a reconstituted  plot  being formed by alteration of the boundaries of the original plot; formation of re- L4 Sup.  Cl/67-6 74 constituted  plot by the transfer, wholly or partly, of  the adjoining   lands;  for  allotting  a  plot  to  any   owner dispossessed  of land in furtherance of the scheme  and  for transfer  of  the  ownership of a plot from  one  person  to another.  It may be stated, at this stage, that, as wilt  be seen from sub-cl. (d) of s. 26(2), the intention of the  Act appears  to be that the Town Planning Scheme should, as  far as possible, make the provisions for allotment of plots,  to

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owners, who are being dispossessed of their property. Section 27 relates to filing of objections, within one month from  the date of publication of the draft scheme,  and  the local authority being bound to consider those objections and making  suitable  modifications, as it  thinks  fit,  before submitting the draft scheme to the State Government.   Under sub-s.  (1)  or s. 28, the local authority has  to  forward, within  the  time  mentioned  therein,  the  draft   scheme, together  with any modifications made by it, along with  the objections  that may have been filed by persons affected  by such scheme and make an application to the State  Government for sanctioning the same.  Sub-s. (2) provides for the State Government, after making such enquiry as it thinks fit  and, after  consulting the Consulting Surveyor,  sanctioning  the Scheme with or without modifications; and the sanction is to be  published  in the State Gazette.  Sub-s.  (3)  makes  it obligatory  when the State Government sanctions the  scheme, to  state  in the notification itself, about the  place  and time  the  draft  scheme  will be open  to  the  public  for inspection. Chapter V. in which ss. 31 to 43 are to be found, deals with the Town Planning Officer and the Board of Appeal.   Section 31 deals with the appointment of a Town Planning Officer, by the  State  Government, within one month from the  date,  on which  its  sanction to the draft scheme is  published.   It also  provides  for the State Government removing  the  said officer  and  appointing another officer,  in  circumstances mentioned therein.  Section 32 enumerates the duties of  the Town Planning Officer.  He is to act in accordance with  the prescribed   procedure,  and  decide  the  various   matters mentioned  in cls. (i) to (xiv) of S. 32 (1 ).  Among  other matters, the Town Planning Officer has to fix the difference between the total values of the original plots and the total of  the  values of the plots included in the  final  scheme; estimate the portion of the sums payable as compensation  on each plot used, allotted or reserved for a public purpose or purpose  of the local authority which is beneficial  to  the owners  and  residents  within the area of  the  scheme  and partly to the general public and which are to be included in the  cost of the scheme estimate the increment to accrue  in respect of each plot included in the final scheme; calculate the proportion in which the increment of the plots  included in  the final scheme shall be liable to contribution to  the costs of the scheme; calculate the contribution 75 to  be  levied on each plot included in  the  final  scheme; determine  the amount to be deducted from, or added  to,  as the case may be, in the contribution leviable from a  person and  provide for the total or partial transfer of any  right in  an original plot to a reconstituted plot or provide  for the extinction of any right in an original plot. Section 33 makes the decision of the Town Planning  Officer. rendered  under  s. 32(1), final and conclusive,  except  in matters arising out of cls. (v), (vi), (viii), (ix), (x) and (xiii)  of  sub-s. (1) of s. 32.  Section  34  provides  for decisions  given  by the Town officer under  the  clause  as shown above being communicated to the party concerned and it t right to any person aggrieved by that decision, to appeal, within  one  month  from the date of  communication  of  the decision,  to  the  Principal Judge  of  City  Civil  Court, Bombay,  in  Greater Bombay and elsewhere, to  the  District Judge.  The appeal is to be disposed of by a Board of Appeal constituted  under  s.  35, according  to  which  it  should consist  of  a President and two  Assessors,  the  President being the Principal Judge of the City Civil Court in Greater

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Bombay,  or  such other Judge of the said Court  as  may  be appointed  by  the  State  Government,  and  elsewhere,  the District Judge.  Section 35 provides for the appointment  of fit and proper persons as Assessors, who are to sit with the President  to  constitute the Board of Appeal to  decide  an cls.  (v),  (vi),  (viii),  (ix) (x)  (xiii)  of  s.  32(1). Section  40  provides for the Town  Planning  Officer  being required  to modify or vary his decision in accordance  with the  decision of the board of apple and the decision of  the board  of appeal being  final and conclusive and  binding on all  persons.   Section 13 provides for  the  Town  Planning Officer forwarding to the State Government, the final scheme as varied by him, in accordance with he decision, if any, of the Board of Appeal, along with his decision’. and a copy of the decision of the Board in appeal. Chapter  VI.  which comprises ss. 44 to 61, relates  to  the splitting  up  of  schemes  into  sections  and  preliminary schemes.  Section 3 lays down the effect of a final  scheme, and  states  that  when it has come into  force,  all  lands required by the local authority, unless otherwise  provided, should vest in the local authority absolutely free from  all encumbrances and all rights in the original plots which have been  reconstituted being determined and  the  reconstituted plots  becoming  subject to the rights settled by  the  Town Planning Officer. Chapter  VII consists of ss. 62 and 63 and deals with  joint own planning schemes.  Chapter VIII. which comprises ss.  64 to  78, deals with finance.  Section 64 refers to  what  all items 76 shall  be included in the costs of a town  planning  scheme. The  difference  between the total values  of  the  original plots  and  the total values of the plots  included  in  the final  scheme, which is to be fixed under s.  32(1)(iii)  by the Town Planning Officer, is to be arrived at in the manner provided  in S. 64 (1) (f ) . Broadly, the estimate that  is to be made of the value of the original plots and the  value of  the plots included in the final scheme, is to be on  the market value at the date of the declaration of intention  to make  a  scheme, without reference to  improvements  contem- plated  in the scheme.  The estimate of the  increment  that accrued in respect of each plot included in the final scheme and which is to be fixed by the Town Planning Officer, under S. 32(1) (viii), is again to be done in accordance with  the provisions  of s. 65.  Here again, it will be seen that  the estimate  that is to be made is the market value of  a  plot included  in  the  final  scheme, as  on  the  date  of  the declaration of intention to make a scheme, on the assumption that  the scheme has been completed and the market value  of the  said  plot on the same date, without reference  to  the improvements contemplated in the scheme, has been taken into account.   Section 66 relates to contribution towards  costs of the scheme and the Town Planning Officer must,have regard to   these   provisions  when  fixing  the   proportion   of contribution of a plot included in the final scheme under S. 32(1)(ix).  Again, in determining the amount to be  deducted from, or added to, . the contribution leviable from a person under  s. 32 (1) (xi), the provisions of s. 67 will have  to be  applied.  The total or partial transfer of right  in  an original  plot  to  a reconstituted plot,  as  well  as  the extinction of any right in an original plot, which has to be decided by the Town Planning Officer, under s. 32 (1) (xii), must be in accordance with the provisions of s. 68. Section 71 provides for payment of compensation to the owner of  an original plot who is not provided with a plot in  the

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final  scheme or if the contribution to be, levied from  him under  s.  66 is less than the total amount to  be  deducted therefrom  under any of the provisions of the Act.   Section 73  provides  for  payment,  by  the  local  authority,   by adjustment  of  account, of payments due to be made  to  any person. Chapter   IX  deals  with  various  miscellaneous   matters. Section  87  provides  for rules being  made  by  the  State Government  for carrying out the purposes of the  Act;  and, under sub-section (2) the State Government has got the power to make rules in respect of the various matters mentioned in clauses (a) to (w). The  Act  was  amended, with retrospective  effect,  by  the Amending Act of 1963. Section  3  of  the Amending Act has  deleted  the  original clause  (1)of  s.  18 and substituted a new  clause  in  its place.  Claus-. 77 (i)  in  the  proviso  to  sub-s. (1) of  s.  66,  has  been substituted by a new clause.  That relates as to how exactly the  cost  of  the scheme is to be met.  Section  7  of  the Amending Act validates certain actions taken and things done and,  in particular, cl. (a) of this section  provides  that the validity of a Town Planning Scheme already sanctioned or continued as sanctioned, cannot be called in question merely on  the  ground that a development plan, in respect  of  the area to which the Town Planning Scheme relates, has not been prepared,  published or sanctioned before the Town  Planning Scheme was sanctioned or continued. One  of  the  contentions advanced  before  us,  by  learned counsel  for  the petitioners, was that  the  Town  Planning Scheme  which  is  under attack,  has  been  framed  without previously complying with the provisions of Chapters 11  and III  of the Act and, therefore, the entire  proceedings  are illegal and void.  But this contention, in our opinion,  has not   been,  rightly,  pursued  further,  in  view  of   the retrospective  nature  of  the  Amending  Act.   No   doubt, according  to  the  petitioners,  the Act  as  well  as  the Amending  Act, are both void because the Legislature had  no competency  to  enact these statutes.  That is  a  different aspect, which will be dealt with by us presently. Under  s.  87 of the Act, the State  Government  has  framed rules on November 15, 1955, called the Bombay Town  Planning Rules,  1955,  hereinafter  called the Rules.   It  is  only necessary to run through some of the material provisions  of these rules. Rule 3 relates to the publication of the declaration,  under s.  4. Rule 4 deals with the publication of the  development plan.   Rule 12 relates to publication of  the  -declaration under  s. 22.  Rule 13 deals with the meeting of  owners  of land and formulating of tentative proposals.  Rule 14  deals with the publication of draft schemes under s. 23.  Rule  17 enumerates  the various particulars to be incorporated in  a draft  scheme, apart from the particulars specified in  cls. (a) to (g) of s. 25.  Rule 21 deals with the procedure to be followed  by the Town Planning Officer.  Rule 23 deals  with the  procedure to be adopted by the Board, on appeal.   Rule 33 deals with the manner of serving notices; and r. 34 deals with proceedings of local authorities. We  have  only  broadly referred to some of  the  rules.   A perusal of the rules clearly shows that elaborate provisions have 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  provide  for  objections being  filed,  and  their being  heard  by  the  authorities

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concerned.   The rules also deal, elaborately  with  various other matters relating to the scheme, dealt with by the Act. 78 The   first  question  that  arises  for  consideration   is regarding  the competency of the State Legislature to  enact the  statute  in  question, According to  Mr.  Sen,  learned counsel  for the petitioners, the Act provides for  transfer of  rights, from one person, in a plot originally  owned  by him, to another person to whom it may be allotted under  the Act.  The Act also provides for extinguishment of rights  of the  original  owner  in the plots  concerned.   These  are, according  to  learned counsel, not covered by  any  of  the entries  either  in  List  11 or List  III  of  the  Seventh Schedule  to  the Constitution.  Again, it is  pointed  out, that   the  Act  requires  owners  of  the  plots   to   pay compensation which is really, so to say, a tax levied by the State on capital assets, for which also there is no power to be found in any of the Entries in List H or List 111. The   State   seeks  to  justify  the  competency   of   the Legislature, relying upon the Entries Nos. 6 and 18 of  List 11 and Entry No. 20 of List III, of the Seventh Schedule. Having  due regard to the scheme of the Act as well  as  the provisions  contained in it, in our opinion, the  competence of  the  State Legislature to enact the same can  be  rested either  on  Entry No. 18 of List II, or on Entry No.  20  of List III, of the Seventh Schedule.  Entry No. 18 of List  11 is as follows :-               "Land, that is to say, rights in or over  land               tenures including the relation of landlord and               tenant, and the collection of rents;  transfer               and    alienation   of    agricultural    land               improvement     and    agricultural     loans;               colonization." The legislation, in question, can be broadly stated to be  a legislation in regard to land.  As pointed out by this Court in Sri Ram Narain Medhi v. The State of Bombay(1).               "It  is  well-settled  that  these  heads   of               legislation  should  not  be  construed  in  a               narrow and pedantic sense but should be  given               a large and liberal interpretation". Further,  in Navinchandra Mafatatlal v. The Commissioner  of Income-tax, Bombay City(2), this Court expressed the rule of interpretation, as follows :-               "The cardinal rule of interpretation, however,               is   that  words  should  be  read  in   their               ordinary,  natural  and  grammatical   meaning               subject  to  this rider,  that  in  construing               words in a constitutional enactment conferring               legislative    power    the    most    liberal               construction should               (1) [1959] Supp, 1 S.C.R. 489,496.               (2) [1955] 1 S.C.R. 829,836.               79               be  put  upon the words so that the  same  may               have effect in their widest amplitude." In construing Entry No. 18, of List III, this Court, in Atma Ram  v. The State of Punjab(1), adopted  the  interpretation placed  by  the Judicial Committee of the Privy  Council  in Megh  Rai  v. Allah Rakhia(2), while construing Item  21  of List  II  (Provincial List) of the Seventh Schedule  to  the Government  of  India  Act, 1935, which  was  more  or  less substantially,  in terms of Entry No. 18 of List II  of  the Seventh  Schedule to the Constitution.  Their  Lordships  of the  Privy Council concluded that Item 21 relating to  land, would  include  mortgages  as an  incidental  and  ancillary

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subject.   This  Court,  in  referring  to  that   decision, observed at p. 755 : ’Their Lordships observed that Item 21 aforesaid, forming  a part,  as  it did, of the Constitution, should  on  ordinary principles,  receive  the widest construction,  unless,  for some  reasons,  it is cut down either by the terms  of  that item  itself, or by other parts of the  Constitution,  which have,  naturally, to be read as a whole; and then  proceeded to make the following very significant observations :-               "As to item 21, ’land’, the governing word, is               followed  by the rest of the item, which  goes               on  to  say, ’that is to  say’.   These  words               introduce the most general concept--rights  in               or  over land’. ‘Rights in land’ must  include               general   rights   like  full   ownership   or               leasehold  or all such rights.   ’Rights  over               land’   would  include  easements   or   other               collateral  rights, whatever form  they  might               take.   Then follow words which are not  words               of   limitation   but   of   explanation    or               illustration,   giving  instances  which   may               furnish     a     clue     for      particular               matters........". The various aspects dealt with in the Act, in question,  can be  considered  to deal with ’land’, and,  accordingly,  the competency of the State Legislature to enact the measure, in question, can be found in Entry No. 18. We  are further satisfied that the competency of  the  State Legislature  can also be rested under Entry No. 20, of  List III, which is as follows:- "20.  Economic and social planning".In Principles of Town  & Country  Planning by Lewis Keepl the scope of  planning  has been stated thus (1)  [1959] Supp. 1 S.C.R. 748, 756. (2)  L.R. 741.A. 12. 80               planning  has both social and  economic  aims.               Socially,  successful Planning tends  to  make               people’s lives happier because it results in a               physical environment which conduces to health,               which allows convenient and safe passage  from               place  to  place,  which  facilitates   social               intercourse     and    which    has     visual               attractiveness.  The economic results of  good               Planning also, of course, conduce to increased               happiness,  but  not  quite  so  directly.   A               proper   spatial  relationship   between   the               communities  in a region and  the  constituent               parts  of a town, compactness of  development,               and an efficient arrangement of  communication               routes  all result in human  activities  being               carried   on   more   efficiently   and   less               wastefully, and thus increase wealth;" In  Corpus Juris Secundum, Vol. 70, the word  "planning"  is stated to mean:               "In  connection with municipalities, the  term               connotes a systematic development contrived to               promote   the  common  interest   in   matters               embraced   within  the  police   power,   with               particular   reference   to   the    location,               character,  and  extent of  streets,  squares,               parks, and to kindred mapping and charting." In  Encyclopedia Britannica, Vol. 5, p. 815 "City  Planning" is stated to mean :               "the  guidance  of the growth  and  change  of

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             urban   areas.   As  such,  it  is  aimed   at               fulfilling  social  and  economic   objectives               which   go  beyond  the  physical   form   and               arrangement  of  buildings,  streets,   parks,               utilities   and  other  parts  of  the   urban               environment.    City  planning  takes   effect               largely  through the operations of  government               and  requires the application  of  specialized               techniques  of survey,  analysis,  forecasting               and   design.   Thus  city  planning  may   be               described   as   a  social  movement,   as   a               governmental function, or as a technical  pro-               fession.   Each aspect has its  own  concepts,               history and theories.  Together they fuse into               the  effort  of  modem society  to  shape  and               improve    the   environment   within    which               increasing proportions of humanity spend their               lives : the city." We  have  already very elaborately referred to  the  various provisions  contained in the Act; and we have  also  pointed out that the original Act of 1915 was passed with a view  to regulate  the development of certain areas with the  general object  of framing proper schemes for the healthy,  orderly, development  of the area in question and it is, with a  view to achieve this purpose 81 that a very elaborate procedure and machinery has been pres- cribed  in  the Act.  Therefore, the contention  of  learned counsel for the appellant that the State Legislature was not competent  to  enact  the statute, in  question,  cannot  be accepted. The further contention of the learned counsel for the appel- lant, we have already pointed out, is that unguided and  un- controlled   power  has  been  vested  in  the   authorities concerned  in the matter of framing the scheme and  that  no principles have been laid down in the Act as to how  exactly an allotment has to be made of the lands in question to  the original   owners.    According  to  learned   counsel,   no principles   have   been  laid  down  as  to   how   exactly compensation,  which  is made payable to  parties  like  his clients,  is  to be calculated.  On these  grounds,  counsel points  out,  the  fundamental  rights  guaranteed  to   his clients, under Arts. 14, 19 and 31 of the Constitution, have been infringed. On  behalf of the State, it is pointed out that in  view  of the  Proclamation  of Emergency which is in  operation,  the petitioners are not entitled to claim any fundamental rights under  Art. 19 of the Constitution.  Alternatively,.  it  is pointed  out  that, in any event, having due regard  to  the various  provisions of, the Act and the object sought to  be achieved,  the Act in question can be considered  to  impose reasonable  restrictions  and therefore the  legislation  is valid under Art. 19(1)(f) of the Constitution. We do not think it necessary to go into the question in this case,  as to whether the petitioners are at all entitled  to invoke Art. 19 of the Constitution.  On the assumption  that they  are entitled to; we shall consider as to  whether  the Act,  in  question, can be sustained under  Art.  19(5),  as imposing  reasonable  restrictions on the  exercise  of  the rights  conferred  on the petitioners under  Art.  19(1)(f). The principles to be borne in mind in applying Arts. 14  and 19, of the Constitution are now well settled.  A fundamental right  to  acquire,  hold and dispose of  property,  can  be controlled  by the State only by making a law  imposing,  in the interest of the general public, reasonable  restrictions

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on the exercise of the said right.  Such restrictions on the exercise  of a fundamental right shall not be arbitrary,  or excessive, or beyond what a required in the interest of  the general  public.  The reasonableness of a restriction  shall be tested both from substantive and procedural aspects.   If an uncontrolled or unguided power is conferred, without  any reasonable and proper standards or limits being laid down in the   enactment,   the   statute  may   be   challenged   as discriminatory.   Bearing  these  principles  in  mind,  the question is whether the grievance of the petitioners in this regard,  is  well-founded.  No doubt. it is  seen  that  the petitioners,  as stated earlier, have been  allotted,  under the Scheme, a smaller extent of land and they have also been directed to pay 82 certain amounts as their share of contribution.  But, having due regard to the scheme of the Act and the object sought to be  achieved, such results are inevitable.  At every  stage, from  the be,-inning to the end, we have already  indicated, the  Act  and  the Rules,  make  very  elaborate  provisions regarding  the formalities to be gone through, by the  local authority,  by  the  State  Government  and  by  the   other authorities  concerned,  in  the  matter  of  preparing  and finalizing a Town Planning Scheme.  At all stages very  wide publicity  is  given, by the authorities concerned,  in  the matter  of making known its proposals to the public  and  to the  owners  of land, who are sought to be affected  by  the Scheme.  Provisions have been made for filing of  objections and suggestions and the authorities being bound to take into account those objections and suggestions.  The procedure  to be  adopted by the Town Planning Officer, in the  matter  of giving his decisions, on the various aspects referred to  in s. 32, has been not only indicated in that section, but also provided for, under the Rules. It is also seen, from the affidavit of the petitioners them- selves,  that  at  all  relevant  stages,  they  have  filed objections    or   suggestions   before   the    appropriate authorities.   Nor  are  we impressed  with  the  contention advanced  on behalf of the Petitioners that there  has  been unfettered  and arbitrary power vested in the Town  Planning Officer in the matter of deciding the various points covered by  s.  32 of the Act.  We have already indicated  that  the procedure  to  be adopted by the Town Planning  Officer  has been  dealt with elaborately, by the relevant rules.  As  to how  exactly  he  has  to  decide  the  particular  matters, referred  to in cls. (iii), (viii), (ix), (xi) and (xii)  of s.  32(1) of the Act, have been indicated in  the  reference made  by  those sub-clauses to ss. 64, 65, 66,  67  and  68, respectively.  Those sections have also been referred to  by us  earlier, and they give very clear indication as to  what matters  are to be adverted to by him, when a matter has  to be decided in accordance with those sections. It is also seen from cl. (e) of s. 26 (2 ) of the Act,  that the primary intention in a draft Town Planning Scheme is  to allot  a  plot  to any owner  dispossessed  of  land.   With reference  to  very,  few  people, to whom  it  may  not  be possible  to  allot any land, s. 71  comes  into  operation. Therefore,  it will be seen that it is riot as if  the  Town Planning  Officer is left with any unguided  discretion  and arbitrary power in dealing with matters under 32(1). No doubt, every decision given by the Town Planning Officer, under s. 32, is not appealable; but the important  decisions that  are to be given by him, for instance, under cls.  (v), (vi), (viii), (ix), (x) and (xiii), are appealable under  s. 34  to  a  Board  of Appeal, which is  presided  over  by  a

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Judicial Officer of the stand- 83 ing  of  a District Judge.  The procedure to be  adopted  by that  Board is also clearly indicated in the rules.  It  is, after  all-these matters are gone through, that  ultimately, the State Government sanctions the final Scheme. Therefore,  having due regard to the substantive and  proce- dural  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  ,.how  that  the  grievance  of   the petitioners   that  Art.  14  is  violated,  is   also   not acceptable. The  petitioners,  no doubt, urge that  a  very  exhorbitant price is being fixed by the Town Planning Officer  regarding the  value  of  the reconstituted plots  allotted  to  them. Those  are  matters of detail, and they are covered  by  the provisions of the Act referred to above. The petitioners, no doubt, make a grievance of their  having lost  a  fairly large extent of land,  which,  according  to them, amounts to deprivation.  We are not satisfied that the petitioners’  grievance  is  well-founded  in  this  regard. Though  the  petitioners may have  originally  owned  larger extents of land, in different areas, which may or may not be fit for building purposes, there can be no controversy, that the  reconstituted  plots, though of a lesser area,  have  a higher  value,  as building sites, in view  of  the  various improvements and amenities provided under the Town  Planning Scheme.  What parties, like the petitioners, may liave  lost in actual area of lands, can certainly be considered to have been  more  than sufficiently compensated by  the  increased value  of the reconstituted plots.  There is no question  of any  deprivation of property, therefore, so as  to  attract. Art. 31. The  petitioners  make  a grievance that they  have  to  pay fairly  large amounts by way of contribution to the  Scheme. No  doubt,  the petitioners’ stand appears to  be  that  the amount collected or demanded is really a tax, or fee, at any rate,  which  also the local authority has no right  to  ask for.   Here again, the matter will have to be approached  in an entirely different way.  The amount that the  petitioners have  been asked to contribute is only towards the  cost  of the Scheme, which has to be incurred by the local authority. As to how exactly that contribution is to be worked out  and the  proportion in which the plots are to bear that  burden, have  all  been  indicated  in  the  Act.   Therefore,   the liability  of the petitioners to pay contribution has to  be upheld,  once we come to the conclusion that the Act,  as  a whole, will have to be sustained. Both  the  contentions  of the petitioners  fail,  The  writ petition.  is,  accordingly,  dismissed with  costs  of  the respondents, one set. V.P.S.                      Petition                                      dismissed, 84