Gujarat High Court
Ahmedabad Municipal Corporation vs Chimanlal Estate Owners' Association ... on 18 December, 1993
Equivalent citations: (1995)1GLR224
JUDGMENT
G.T. Nanavati, Acting C.J.
1. Both these appeals arise out of the judgment and order passed by the learned single Judge of this Court in Special Civil Application No. 6127 of 1983 Chimanlal Estate Oqners Asso. v. Ahmedabad Muni. Corporation 1986 (2) GLR 1323 Letters Patent Appeal No. 243 of 1986 is filed by the Ahmedabad Municipal Corporation, which was respondent No. 1 in the petition. Letters Patent Appeal No. 30 of 1987 is filed by the State of Gujarat, which was respondent No. 2 in the petition. As both these appeals arise out of the same judgment and raise the same point, they are disposed of by this common judgment.
2. Special Civil Application No. 6127 of 1983 was filed by Chimanlal Estate Owners Association, an association registered under the Bombay Non-Trading Corporation Act. The association owns certain properties situated on Ashram Road in the city of Ahmedabad. In respect of one of such properties, the Association submitted its first plan for construction and it was sanctioned on 1-12-1980. The second revised plan was submitted on 23-3-1981 but was rejected on 26-3-1981. Again, a revised plan was submitted on 27-12-1982 claiming 1.40 FSI (Floor Space Index). That was also rejected on 17-2-1983. According to the Association, the last revised plan was rejected solely on the ground that the available FSI is only 1.00 and not 1.40 as claimed by it. Thereafter on 12th August, 1983, the Government of Gujarat exercising its powers under the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the 1976 Act") issued a notification sanctioning the draft development plan submitted by the Corporation providing for FSI of 1.00 in respect of buildings abutting on Ashram Road.
3. Aggrieved by the rejection of its plan and the said notification the Association filed the pettion under Article 226 of the Constitution and prayed:
(a) that the said notification be declared as ultra vires the provisions of the Gujarat Town Planning and Urban Development Act, 1976;
(b) for a declaration that the permissible FSI in respect of the building abutting on Ashram Road cannot be less than 1.33 in view of the final development plan valid for the period 1965 to 1975;
(c) to declare that even in respect of the city area, the Regulations framed by the Ahmedabad Urban Development Authority will apply and, therefore, the Corporation is required to sanction the plans taking into consideration those Regulations and the FSI provided under those Regulations, and
(d) for certain directions to the respondent Corporation and the State of Gujarat. Appreciating the need for land development in urban areas in view of the commercial and industrial development and exodus of population from villages into towns and cities, the Bombay Legislature enacted Act No. 1 of 1915 known as The Bombay Town Planning Act, 1915 in order to provide for planned and controlled development and use of land in urban areas. At that time, Ahmedabad had a Borough Municipality. On 18-4-1927, it declared its intention to make a Town Planning Scheme. After declaring its intention, it prepared various Schemes and in these appeals we are concerned with the Scheme known as "Town Planning Scheme, Ellisbridge No. 3", which was finalised on 15-3-1945. The said Scheme continued till the Bombay Town Planning Act, 1954 being Bombay Act No. 27 of 1955 (hereinafter referred to as "the 1954 Act") came to be enacted. The 1915 Act was repealed by it but, because of the saving clause, final scheme continued to be in force. As several deficiencies in the provisions of the 1915 Act came to the notice of the Government and the Legislature, one of which was that each Town Planning Scheme was prepared exclusively and independently for its own area without any relation to one another or without relation to the general development of the town as a whole on an integrated basis, the 1954 Act introduced a provision for the first time making it obligatory upon every local authority to carry out a survey of the area within its jurisdiction and to prepare and publish a development plan and submit it to the Government for sanction, the provisions regarding preparation of the TP Scheme remained almost the same.
4. Meanwhile in the year 1949, the Ahmedabad Borough Municipality became Ahmedabad Municipal Corporation (hereinafter referred to as "the Corporation"). The Corporation prepared a development plan and it was sanctioned by the Government. It was for a period of ten years: 1965-75. At the end of 1975, the Corporation commenced the work of revision of the said plan and its tentative draft development plan was made and published in the Gazette on 15-1-1976. In that plan, the proposal was to have 1.33 FSI. In respect of the proposals contained in the said development plan, objections and suggestions were invited as required by the Act. After the objections and suggestions were received, the Corporation modified its earlier decision on 11-11-1976 and decided to propose that FSI should be 1.00 and not 1.33. The Corporation then submitted the draft development plan containing the proposals, other relevant documents and also objections and suggestions received from the public to the State Government for its approval on 20-11-1976. On 21-8-1978, the State Government invited objections and suggestions with respect to the draft development plan submitted by the Corporation. Meanwhile, with effect from 1-2-1978, a new Act called The Gujarat Town Planning & Urban Development Act, 1976 came into force. Under this Act, the Ahmedabad Urban Development Authority came to be constituted some time in January, 1981. The AUDA prepared its own development plan and published the same on 23rd July, 1981 for inviting objections from the public. What the AUDA did in the said plan with respect to the Ahmedabad Municipal Corporation area was that the draft development plan prepared by the Corporation was adopted by it. Thereafter the State Government by its notification dated 12-8-1983, published in the Gujarat Government Gazette, sanctioned the revised development plan and Regulations with some modifications. As regards FSI on Ashram Road, the proposal approved by the State Government was that all final plots abutting on the Ashram Road, beginning from the junction of the Ahmedabad Municipal Transport Service Bus Terminus near Paldi village up to the junction near Usmanpura village, the development shall not exceed FSI 1. As the Association's revised building plan submitted on 27-12-1982 claiming 1.40 FSI was rejected by the Corporation by its order dated 17-2-1983 also on the ground that permissible FSI on Ashram Road is only 1 and as the State Government has now by its notification dated 12-8-1983, fixed the FSI on Ashram Road as 1, the Association filed the petition challenging the validity of the said notification and for a declaration that FSI in respect of buildings abutting on the Ashram road cannot be less than 1.33.
5. The learned single Judge, interpreting Section 7 of the 1954 Act held:
...an authority making the development plan under the 1954 Act had no authority at law to provide for imposition of any conditions and restrictions in regard to open space to be maintained about buildings or the percentage of building area for a plot etc., which are the concern of the Town Planning Scheme and not of the development plan under Section 7 of that Act....
The learned single Judge also held:
...the development plan is expected to confine itself to the overall general development of the area whereas the details of development of individual plots and small parcels of land covered by the TP Scheme are to be dealt with by the Scheme. Secondly, the scheme is the legislative intent while the development plan is the Government's action and whenever there is a conflict between the two, the plan must give way to the Scheme....
The learned single Judge further held that even if it is assumed that the Municipality acting under the 1954 Act had the power to provide for FSI in the proposals which were published, the original proposal was to have an FSI of 1.33. Therefore, the change which it made in the proposal after objections and suggestions were invited from the public and that too without making it known to the public that it was going to make a change and without inviting objections and suggections thereon, was not permissible under Section 9 of the Act and was not legal. The learned single Judge also held that even though the draft development plan and the Regulations were submitted by the Corporation to the Government in November, 1976, it published the modifications for the first time in the Official Gazette on 21-8-1978, i.e., beyond the period of 60 days provided by Section 10(1)(b) and therefore, "... it has to be held that the development plan should be treated as having lapsed, though the legislature has not specifically provided for its lapsing" and that, "It is to be assumed as a matter of necessary implication...". The learned single Judge then held that, "...It is, therefore, reasonable to hold that the development plan that came to be sanctioned in the year 1983 was not a legal exercise...". He further held, "...However, when any action could not have been taken under the old Act, and therefore it is to be treated as non-est and non-existent, the action cannot be deemed to have been done under the corresponding provisions of the new Act". The learned Judge was also of the view that after the constitution of the Ahmedabad Urban Development Authority, only it had the power to prepare a plan for the whole of the area within its jurisdiction, including the area of the Ahmedabad Municipal Corporation, and as that power was not delegated to the Ahmedabad Municipal Corporation, the development plan submitted by the AUDA ought to have been preferred as against the stale proposals of the Ahmedabad Municipal Corporation and in not doing so, the State Government had acted in bad faith and, therefore, also its decision of approving the Corporation's plan stood vitiated. As regards the merits of the decision to revise the FSI from 1.33 to 1 in respect of the buildings abutting on Ashram Road, the learned single Judge held that, "...There is no rational reason to distinguish between the front parts abutting on the Ashram Road and the other parts." and therefore the Government's decision to reduce FSI from 1.33 to 1 should be regarded as arbitrary and violative of Article 14 of the Constitution. The learned single Judge also overruled the preliminary objection raised on behalf of the Corporation that as the building permission was refused not only on the ground of FSI but on many other grounds, this Court should have refused to entertain the petition as this Court would not have been in a position to grant any effective relief and the question raised was thus academic. The learned single Judge held that the petitioner's application was rejected substantially on the ground that it violated the provisions of FSI and therefore it was quite proper to decide the question of FSI and direct the Corporation to reconsider the building plans submitted by die petitioner. Taking this view, the learned single Judge allowed the petition and granted relief in the following terms:
(i) The notification dated 12-8-1983 of the Government of Gujarat under the Gujarat Town Planning & Urban Development Act, 1976 making provisions of FSI of 1 in respect of buildings abutting on the Ashram Road is ultra vires.
(ii) The permissible FSI in respect of the buildings abutting on the Ashram Road cannot be less than FSI 1.33.
(iii) At any rate, the building permissions sought for after the proposals of AUDA are to be examined in the light of the said proposals and at any rate the proposals of AUDA regarding FSI have to be complied with.
(iv) The Corporation has acted without authority of law in providing FSI of 1 behind the back at the time of submitting its proposal in January, 1976 and it had no authority at law to modify its proposals without inviting objections of the public and, therefore, that particular part of the proposal was bad at law and non-est.
(v) It is declared that the permissible FSI on the Ashram Road cannot be less than 1.33 and the petitioner's applications for permissions should be directed to be reexamined by the Corporation on that basis."
6. The learned Advocate General, appearing for the State contended that the learned single Judge has not correctly interpreted Sections 7, 8 and 10 of the 1954 Act and has erroneously come to the conclusion that under the 1954 Act, the local authority had no power to provide for FSI in a development plan and that the development plan lapsed as the necessary formalities were not completed within the specified time. He further submitted that in view of the saving provision contained in Section 124 of the 1976 Act, the plan prepared under the 1954 Act was saved and everything was required to be treated as having been done under the new Act and the State Government is also entitled to proceed further in accordance with the provisions of the 1976 Act. On the question of FSI, he submitted that even though the Corporation has initially proposed the FSI of 1.33, it was open to the Corporation to modify that proposal without inviting fresh objections or suggestions in that behalf. He submitted that the learned single Judge failed to appreciate the implication of the fact that for the limits of the Ahmedabad Municipal Corporation the plan prepared by the Corporation was adopted by the AUDA and as the 1976 Act permits different plans for different areas, there was really no inconsistency between the plan prepared by the Corporation and the plan prepared by the AUDA. Thus, the fixation of the FSI of 1 was quite legal and proper. He also submitted that the properties abutting on the Ashram Road and the properties in the rear constitute two well defined classes and, therefore, if with a view to achieve the object of avoiding congestion of that road, environmental requirement, sanitary facilities and light, the concerned authorities fixed the FSI at 1, it cannot be said that the action is arbitrary or ultra vires Article 14 of the Constitution. It was lastly submitted that it was not for the Court to fix the FSI at 1.33 and if the action of the Government is found to be wrong, then the Government should be directed to reconsider the whole thing over again.
7. Mr. Vakil, learned Counsel appearing for the Corporation adopted all these arguments and further submitted that the learned single Judge ought to have upheld the preliminary objection raised on behalf of the Corporation and should have dismissed the petition. He submitted that without ascertaining the other reasons why building plan submitted by the petitioner was rejected, the learned single Judge has recorded a finding that the building plan was rejected mainly on one ground. He submitted that the petitioner itself had stated in the petition that its building plan was rejected solely on the ground of violation of the FSI of 1. In fact that was not so and, therefore, the Court should have held that the petitioner was not entitled to the relief prayed for with respect to the FSI. As regards the plan prepared by the AUDA, he submitted that the plan and the regulations prepared by it do not provide for the FSI in commercial zone and for that reason and also because of the fact that the Corporation's plan was adopted by the AUDA, it cannot be said that there was inconsistency between the two plans. He submitted that the 1976 Act did contemplate a situation where the revised plan of the local authority would be under consideration when the 1976 Act was brought into force. Therefore, it made a saving provision in Section 124 and it was for that reason that instead of undergoing a procedure again whatever was done earlier may be adopted as having been done under the new Act and the State Government proceeded further from that stage. In the present case, the development plan had reached the stage upto Section 16 and it was open to the Government to proceed further from that stage onwards. He also relied upon Section 17 of the 1976 Act and submitted that the revised plan submitted by the Corporation was required to be considered on its own terms without reference to the subsequent actions or events including the development plan prepared by the AUDA. As regards the prescription of FSI of 1 with respect to the buildings abutting on the Ashram Road, the learned Counsel for the Corporation contended that the learned single Judge has completely misdirected himself by taking into consideration things of which no judicial notice could have been taken and by ignoring other relevant factors. He submitted that the learned Judge has taken into consideration only one factor viz. traffic congestion and has not considered other relevant considerations like environmental requirements, sanitary problems, cleanliness etc.
8. We will first deal with the contention raised on behalf of the Corporation as regards maintainability of the petition. It was submitted that building permission was rejected on more than one grounds. It was not rejected on the sole ground that the available FSI proposed to be consumed was in excess of permissible FSI 1. In fact, the revised plans were rejected on as many as 23 grounds all of which were communicated to the petitioners by the Corporation by their letter dated 17-2-1993. The learned Counsel for the Corporation, therefore, submitted that even if the contention of the petitioners regarding FSI was accepted, no effective relief could have been granted to the petitioners and the Corporation could not have been asked to reconsider those revised plans afresh and, therefore, the question of exempting the permissible FSI and the validity of the notification was purely academic. He also submitted that in the affidavit-in-reply, the respondent Corporation had pointed out that the permission to construct according to the second revised plans was refused on many grounds and yet the petitioners did not amend the petition. Not only that but he did not produce before the Court the other grounds on which the said permission was rejected. It was, therefore, improper to reject the preliminary contention on the ground that the other grounds on which the building permission was refused were not substantial. He also submitted that the relief which has been granted by the learned single Judge is thus based upon an erroneous conclusion again based upon a wrong assumption. He also submitted that the said conclusion is wrong as it is also based upon extraneous factors. In support of his contention, he drew our attention to the observations made in paragraph 19 of the judgment. On perusal of the same, we find that the learned single Judge has proceeded on the basis that the petitioners' application has been rejected substantially on the ground that it violated the provisions of the FSI. As the petitioners' application was rejected on as many as 23 grounds, and as we do not know which were the other grounds as the material in that behalf is not produced, it cannot be said that the petitioners' applications was rejected substantially on the ground that it violated the provisions of the FSI.
9. Another observation made by learned single Judge is that the position of FSI was in a state of flux so to say during that period. This also does not appear to be correct because though various proposals were made and were under consideration, it was not in a state of flux. We also agree that the observation of the learned single Judge that, "if a citizen or a body of citizens feels that in these circumstances their application will be considered favourably and if in that anticipation go ahead with the construction, the public body like the Corporation should not sit tight and insist on the pound of flesh rule. After all the Corporation is a public authority wielding powers but those powers are ultimately to be exercised reasonably and wherever any relaxation in goods is permissible, bona fide or mistaken transactions of the citizens should be respected, though they may not be technically perfect," discloses an erroneous approach. It is difficult to appreciate how a person can go ahead with the construction when his plans are rejected and then say that he was under a bona fide mistake and impression. Another ground given by the learned single Judge rejecting the preliminary contention raised on behalf of the Corporation is that, " These are the days of notorious encroachments on public streets and public places reserved for public purposes. Any one residing in the city of Ahmedabad will be in a position to testify to such encroachment on public streets and footpaths and public places themselves blissfully blinked at by the Corporation and its officers. If it be so, and if other breaches can be condoned but not the provision regarding FSI, as stated by Mr. Vakil in the couse of his arguments, there is no reason why the Corporation should not be asked to reconsider the case of the petitioner, particularly when the question of FSI insisted upon is untenable wholly and the question requires to be re-examined in the light of the provisions of the TP Scheme.
10. The learned Counsel rightly pointed out that there was no material whatsoever to show that the Corporation was wilfully allowing such encroachments. In our opinion, he was also justified in submitting that it was not something of which judicial notice could have been taken. Though the encroachments are a matter of fact, the question whether the Corporation is taking effective steps to remove them or not is a matter of evidence and, therefore, no judicial notice could have been taken of a thing which may be true or which may not be true. Moreover, encroachments made on public streets and footpaths are by street hawkers and the like and there can be no comparison between them and the persons who put up buildings in contravention of building regulations including the provisions regarding FSI. We, therefore, agree with the learned Counsel that the reasons which are given by the learned single Judge for rejecting the preliminary objection are not quite valid, but it is difficult to accept his contention that the preliminary objection raised on behalf of the Corporation should have been accepted and the petition should have been dismissed on the ground that no effective relief could be granted. It may be that the relief granted by the learned single Judge is not quite proper, but it is quite difficult to say that the petition should have been rejected on the ground that the Court could not have granted any effective relief to the petitioners. The FSI has been fixed by issuing a notification and, therefore, it was open to the petitioners to challenge the validity of the said notification and fixation of the FSI, if that had affected his right or that it is likely to affect his rights. Therefore, even though the petitioners had stated in the petition that the building plans were rejected merely on the ground that it had exceeded the available FSI, we see no reason why he should be precluded from challenging the validity of fixation of FSI on the Ashram Road at 1 and not 1.33 as proposed earlier. For all these reasons, we cannot uphold the first contention raised on behalf of the Corporation.
11. It may be stated that the learned Counsel, in support of his contention that the grounds on which the permission was refused should have been placed on record, has relied upon the decision of the Supreme Court in Wasi Uddin Ahmed v. The District Magistrate, Aligarh , wherein it has been held that the copy of the impugned order should be filed alongwith the petition. The learned Counsel also relied upon the decisions of the Supreme Court in Hans Mutter ofNurenburg v. Superintendent, Presidency Jail, Calcutta ; Baseshar Nath v. CIT, Delhi ; Mangal Singh v. Union of India D. Nagaraj v. State ofKarnataka order to show who can challenge the impugned action, and in support of the proposition that the Courts do not examine the questions which are only academic and where it is not possible for the Court to grant any relief.
12. In order to examine the other rival contentions properly, it will be necessary to refer to the Scheme of the Act of 1915, the Act of 1954 and the 1976 Act. It was by enacting the Bombay Town Planning Act, 1915 that real beginning in town planning was made in the State of Bombay, if not in the whole of India. The object and purpose of that Act was to ensure (1) sanitation, (2) amenities and (3) orderly development in areas under the proposed Town Planning Scheme. The Act of 1915 provided for framing of schemes in order to see that extension areas of towns and cities under process of development should be laid out physically in an orderly manner with as far as possible rectangular plots, with provisions of all services such as roads, lighting, drains, sewers, water supply, and also reservations were to be made for all amentities in particular, schools, playgrounds, hospitals etc. The drawback of that Act was that each TP Scheme prepared under the Act was prepared exclusively and independently for its own area without any relation to one another or without any relation to the general development of the town as a whole on an integrated basis. The experience showed that inspite of formulation of different town planning schemes in a town the whole town as such presented an unplanned and chaotic development. In order to get over this difficulty, the said Act was replaced by the new Act of 1954. It not only provided for preparation of TP Schemes as under the Act of 1915 and provisions in respect of the preparation of the schemes more or less remained the same but it also provided for preparation of development plans for the entire area under the jurisdiction of the local authority. The new concept of development plan was introduced in the Act of 1954 in order to achieve planned development of the whole town or the city. Then came the 1976 Act with improved provisions including provisions for constitution of an Area Development Authoriy for a development area and Urban Development Authority for an urban area. Though the basic idea of preparation of development plan in the first instance and the schemes later on has been retained in the new Act, now more elaborate provisions have been made in that behalf in the 1976 Act.
13. The Act of 1954 was an Act consolidating and amending the law for the making and execution of the town planning scheme. It, therefore, contained more exhaustive provisions than the provisions under the Act of 1915. Section 3 of that Act provided for preparation of development plan by every local authority in respect of the area within its jurisdiction within a period of four years from the date on which the said Act came into force. In case of failure on the part of the local authority to do so, the power was given to the State Government to prepare such plan. Section 7 of the said Act provided for the contents of the development plan. As the said provision is relevant for our purpose, it is quoted below:
7. A development plan shall generally indicate the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are to be carried out and regulated. In particular it shall contain the following proposals, namely:
(a) proposals for designating the use of the land for the purposes such as (1) residential, (2) industrial, (3) commercial, and (4) agricultural;
(b) proposals for designation of land for public purposes such as parks, paly-grounds, recreation grounds, open spaces, schools, markets or medical, public health or physical culture institutions;
(c) proposals for roads and high ways;
(d) proposals for the reservation of land for the purposes of the Union, any State, any local authority or any other authority established by law in India; and
(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.
Section 8 provided for publication of the particulars and what should be submitted to the State Government alongwith the development plan. The said section is also relevant for our purpose and, therefore, it is quoted below:
8. The following particulars shall be published and submitted to the State Government alongwith the development plan:
(i) a report of the Surveys carried out by the local authority before the preparation of the development plan;
(ii) a report explaining the provisions of the development plan;
(iii) regulations enforcing the provisions of the development plan, and explaining the manner in which necessary permission for developing any land can be obtained from the local authority;
(iv) a report of the stages by which it is proposed to meet the obligations imposed on the authority by the development plan;
(v) an approximate estimate of the cost involved in the acquisition of lands reserved for public purposes.
On publication of declaration of intention of making a development plan, the restrictions as contained in Section 12 of the Act as regards any development work in any building or in or over any land became applicable. The power of the local authority to grant permission subject to the said restrictions was also made subject to such general or special conditions as the State Government by an order in that behalf made under Section 13 of the Act. Section 18 provided for making of a town planning scheme. By Section 19 of the Act the Bombay Town Planning Act of 1915 was repealed but it, inter alia, saved the final schemes forwarded or sanctioned or varied by the State Government and they were to be thereafter governed by the provisions of that Act.
14. The Ahmedabad Municipality (which became a Corporation in 1951) acting under the Act of 1915 declared its intention of making a scheme on 18-4-1927. The said scheme then became final on 15-3-1945, but in view of the Act of 1954, the Corporation by its resolution dated 1-12-1958 made a declaration under Section 4 of its intention to prepare a development plan for the whole of the area within its jurisdiction. The development plan prepared by the Corporation was sanctioned by the Government of Gujarat on 21-8-1965. Simultaneously, the Government of Gujarat directed by an order made under Section 13(1) of the Act of 1954 that the grant of commencement certificate shall be subject to the condition that it shall not be inconsistent with the manner of development and improvement of the said area set out under the Schedule which is quoted below for ready reference:
Appendix 8:
Special Development Regulations for the commercial zone in the F.S.I. Scheme:
(1) The floor above the second floor may be permitted, subject to the condition that the floor space index (i.e. ratio between the total built up area of one floor and the plot area does not exceed 1.33).
It may be stated at this stage that under the scheme prepared under the Act of 1915, there was no provision with respect to floor space index. On 21-6-1974, the Corporation framed Regulations controlling the development of the area under the TP Scheme, Ahmedabad and they were also made applicable to all the lands situtated within the area of TP Scheme No. 3. It defined "Floor Space Index" as follows:
Floor space index of a plot, building unit or premises shall mean the ratio of the combined gross floor area of all storeys including the area of all walls as well as mezzanine floors of a building on a plot, builidng unit or premises to the total area of the plot, building unit or premises, provided that the following shall not be counted towards the computation of floor space index.
and made the following provision in respect of the maximum permissible built up area and the maximum permissible FSI:
Usezone Maximum Maximum permi-
permissible ssible FSI.
built up area.
1. Old city villages 75% 2.5 Railwaypura.
Railwaypura
2. City Centre 50% 1.5
3. Commercial (offices and businesses)30% 1.33
4. Educational institute. 20% 1.00
Thereafter the Town Planning Committee of the Corporation by passing a resolution recommended to the Corporation to reduce the maximum permissible FSI from 1.33 to 1.0 in respect of all final plots situated on the Ashram Road beginning from the junction of the AMTS bus terminus near Paldi upto the junction near Usmanpura village. The Corporation by its resolution dated 11-11-1976 gave its approval to the said recommendation and thus modified its proposal contained in the development plan. The revised development plan was then forwarded to the State Government for its approval on 22-11-1976. While the said plan was pending before the Government for its approval, the present Act, i.e., the 1976 Act came into force on 1-2-1978. The Government of Gujarat by its order dated 1-2-1978 directed under Section 122 of the Act that the Area/Urban Development Authorities for Ahmedabad, Baroda, Surat, Rajkot, Jamnagar and Bhavnagar development areas should till further consideration delegate the functions specified in that order to the local authorities functioning in those development areas. The said order was then modified on 17-2-1978 by substituting figures and brackers "23(1)(ii)". The Ahmedabad Urban Development Authority thereafter on 16-2-1978 delegated the said functions to the Municipal Corporation in accordance with the directions given by the Government. The proposals received by the Government were published by it in the Gazette of 31-8-1978 and it invited suggestions and objections with respect thereto. The Town Planning Committee of the Corporation passed a resolution on 19-10-1978 proposing a moidification with respect to the FSI by raising it from 1 to 1.5. The said suggested modification was approved by the Corporation 24-10-1978. A similar resolution was passed by the Standing Committee on 2-7-1981 but then the Government of Gujarat by its Order dated 12-2-1982 suspended the operation of the said resolution. Ultimately, the State Government, after considering all the objections and suggestions received by it, finalised the modifications, sanctioned the draft revised development plan and regulations and specified 16-9-1983 as the date on which the final development plan would come into force by its notification dated 12-8-1983. As regards FSI, the modified proposal approved by the Government was as under:
20. In respect of all final plots abutting on the Ashram Road, beginning from the junction of the Ahmedabad Municipal Transport Service Bus Terminus near Paldi village upto the junction near Usmanpura village, development shall not exceed 1.
All throughout no building permission was given on the basis of the FSI being 1.5 in place of operative FSI of 1 on the Ashram Road under the revised development plan.
15. The question which arises for consideration is, whether the Corporation had the power to provide for the FSI under the Act of 1954. As stated earlier, the learned Single Judge has held that the respondent Corporation had no such power. In this behalf, out attention was drawn by the learned Advocate General to Sees. 7 and 8 of die Act of 1954. However, in order to appreciate the contention raised by him, it will be necessary to refer to the contention raised on behalf of the petitioners on die basis of the comparison of the provisions of the Act of 1954 with the provisions of the 1976 Act. The Act of 1954 provided for general development and not witii respect to specific thing like FSI and that under the Act of 1954 provision regarding FSI could be made only in the scheme and not under the plan. Section 7 of the Act of 1954 provided that the development plan should generally indicate the manner in which the development and improvement of the entire area within the jurisdiction of the local authority were to be carried out and regulated. Having made this general provision, it further provided as to which proposal should particularly made. What was submitted by the learned Advocate General was that merely because of the different method of drafting, no such inference can be drawn as contended by the petitioners and mat the provision indicating which proposals were required to be particularly stated in the development plan cannot be construed as restricting the power of me development plan making authority to make provision in the plan even with respect to the FSI. He also dra our attention to Clause (iii) of Section 8 which provided for preparation and submission of regulations by the local authority to the State Government framed for the purpose of enforcing the provisions of development plan and explaining the manner in which necessary permission for developing any land could be obtained from the local authority. He submitted that the said provisions would certainly include within its ambit a regulation with respect to what is provided in Section 18 (2)(j) with respect to a Scheme.
16. Mr. Vakil, learned Counsel for the Corporation also submitted that the particulars mentioned in Section 7 did not affect the generality of that provision and the words "development and improvement" used in the opening part of Section 7 also included fixation of the FSI as the FSI would depend upon the quantum and nature of the services like drainage, water, cleaning, roads, etc., to be rendered by the Corporation. However, as regards Section 18(2)(j) what he submitted was mat it is a provision for prescribing percentage of a building area for a plot and it is not a provision for FSI. He submitted that Section 12 of the 1976 Act, while particularly stating in respect of which matters provision can be made in a draft development plan, has now included FSI also and that would also indicate that, according to the Legislature, development and improvement includes a provision for FSI also. In our opinion, if Sees. 7 and 8 are read together, it can be said that under the Act of 1954 it was open to the local authority to make provision for FSI and the local authority could make regulations for enforcement of the provisions of the development plan and for prescribing the manner in which the necessary permission for development of any land could be obtained from the local authority. Development of the land would certainly include fixation of building area for a plot and FSI also even if they are treated as different. In our opinion, the submissions made by the learned Counsel for the Corporation and the learned Counsel for the petitioners, on the basis of comparison of Section 7 of the Act of 1954 with Section 13 of the 1976 Act, are not quite relevant as, in our opinion, Sees. 7 and 8 of the Act of 1954 are required to be construed independently and without reference to Section 12 of the 1976 Act.
17. The learned Counsel for the petitioners, in the alternative, submitted that, in any case, the Corporation could not have provided for FSI of 1 without inviting objections and suggestions thereon. As the Corporation had done so, its action was not consistent with Section 8 of the Act. In other words, his submission was that as proper procedure in this behalf was not followed, the action of the Corporation must be regarded as invalid. He submitted that the draft development plan published on 15-1-1976, contained a proposal for the FSI of 1.33. No objections to that proposal were received from the members of the public. The Corporation had on its own decided to reduce it to 1 by its resolution dated 11-11-1976. As it amounted to substantiate change, notice should have been given with respect to this change as it was likely to affect the right of the land owner to use and enjoy his property. With respect to Section 9, he submitted that it contemplates only those modifications which became necessary because of objections raised and suggestions made by the public. If the Corporation wanted to make changes on its own, then it was necessary for it to publish the said change and invite objections or suggestions with respect to the same. Section 9 of the Act of 1954 read as under:
9. If within two months from the date of publication of the development plan any member of the public communciates 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.
On a true reading of the section, it can be said that what it provided for was that if within the prescribed time any suggestion relating to the development plan was received by the local authority, then it was obligatory for it to consider the said suggestion. It also enabled the local authority to modify the plan, if thought fit, in view of such suggestions before submitting the same to the State Government. It is difficult for us to read in that provision the requirement of giving a notice to die public of any change which it desired to make either on its own or because of the suggestion received from the public, if it was likely to adversely affect the owner and user of the land. It is, therefore, not possible to agree with the contention raised on behlaf of the Corporation that in suggesting a change in the FSI from 1.33 to 1 the Corporation acted in breach of the prescribed manner or inconsistently with Section 9 of the Act. In our opinion, the contention raised on behalf of the appellant that the learned single Judge committed an error in holding that the action of the Corporation was inconsistent with Section 9 of the Act deserves to be accepted.
18. It was next contended on behalf of the appellant that the learned single Judge committed an error in holding that the development plan had lapsed because of delay in publishing the modifications in the Official Gazette within the prescribed time of 60 days. Section 10(1)(a) of the Act of 1954 provided as under:
10. (1)(a) On receipt of the development plan under Section 8, the State Government may, after consulting the Consulting Surveyor and within the prescribed period sanction the development plan and the regulations as so received unless any modifications therein are considered to be necessary by the State Government.
The learned single Judge held that though the plan and the regulations were submitted to the Government in November, 1976, it did not publish the modifications in the Official Gazette till 21-8-1978 for inviting objections and suggestions and, therefore, the conditions laid down in Section 10(1)(a) read with Rule 7 whereby the time limit of 12 months from the date of receipt by the State Government and 24 months from the receipt of the plan and the Regulations having not been complied with, the plan has to be treated as having lapsed. The learned single Judge also held that if any modification of the development plan and regulations is considered necessary by the State Government, it has to be published in the Official Gazette. It is also necessary to call upon the persons affected thereby to submit to the State Government their suggestions in writing within a period of 60 days from the date of publication of the modifications. It did not publish the modifications earlier as they were published for the first time on 21-8-1978 only. What was submitted by the learned Advocate General was that a Division Bench of this Court in Kikabhai Ukabhai Patel v. State of Gujarat and Ors. 1988 (1) GLR 569 has, while interpreting Section 17 of the 1976 Act read with Rule 7 of the 1979 Rules, has held as under:
...As a result of the aforesaid discussion, the following situations emerge : (1) If the State choose to sanction the draft development plan and regulations received by it under Section 16 from the competent authority, without any modification, the prescribed period during which such exercise has to be done is 12 months from the receipt of the plan and regulations as laid down by Rule 7(1) of the Rules. (2) If the State Government having received such draft development plan and regulations with objections and suggestions as per Section 16(1) read with Section 16(2), considers it proper to grant certain modifications in the draft development plan which were not granted earlier by the area the draft development authority and when such modifications are to be made in the light of the objections and suggestions already received by the area development authority, then the said modifications can be made within a further period of 12 months totalling, in all, 24 months of the receipt of the development plan and regulations as laid down by Rule 7(2) of the Rules (3) If the State Government thinks it proper to return the said plan and regulations to the authority for modifying the plan and regulations, then it can so return the said draft development plan. Once the plan is returned, the authority has to deal with returned plan as laid down by Section 17(2) of the Act, and then resubmit, the draft to the State Government for sanction. If that happens, the State Government can sanction the same after due modification is carried out by the area development authority as per Section 17(1)(b) for which there is no period prescribed. (4) Instead of returning the plan, the State may exercise powers under the proviso to Sub-section (2) of Section 17(1)(a) and may then invite objections from the public if modifications are substantial in nature. The said provision clearly indicates that there must be such substantial modifications which the State suo motu thinks it proper to carry out in the plan. For such proposed modifications, the members of public had earlier no opportunity of objecting and that is the reason why they are to be published by the State Government for the first time. Once that happens, the State Government can sanction the development plan with substantial modifications as proposed by it as per Section 17(1)(c) of the Act for which also, there is no period of limitation. (5) Lastly, the State Government may refuse to accord sanction to the draft development plan and regulations and direct the area development authority or authorised officer to prepare fresh development plan under the provisions of the Act. Out of the aforesaid five situations, the question of sanctioning draft development plan and regulations within the prescribed period becomes relevant only in the first two cases. For the rest of the cases, there is no period prescribed by the Legislature for sanctioning such plan and regulations with modifications. As the present case falls within the fourth category of cases, it is obvious that Rule 7 is totally out of picture and, therefore, it must be held that for sanctioning this plan, after inviting objections from the members of public by the State Government itself, when such modifications are proposed suo motu by the State, there is no time limit within which such exercise can be finalised and sanction can be accorded by the State to the plan with or without such substantial modifications suo motu proposed by it. In view of the aforesaid conclusion of ours on the scheme of relevant provisions of the Act, it is not necessary for us to consider the wider question as to whether the draft development plan would lapse if it is not sanctioned within the prescribed time by the State Government. We are also not required to consider whether in absence of any express provision for lapsing of draft development plan under Section 17 and especially when there are other provisions of the Act which expressly provide for lapsing as contemplated by Section 32 on the one hand and Section 42(3) on the other, the development plan can at all lapse as not being sanctioned under Section 17(1) by the State within the prescribed period. We are also not required to consider whether prescription of time limit under Rule 7(1) and (2) is mandatory in nature or is merely directory in nature especially when 10 years' period is provided by Section 20 of the Act for acquiring the land reserved for specified purposes under the final development plan by the comptent authority. However, we may refer to a decision of the learned single Judge of this Court in the case of Chimanlal Estate v. Ahmedabad Municipal Corporation, [1986(2)] XXVII(2) GLR 1323, on which strong reliance was placed by Mr. Sanjanwala, learned Advocate for the petitioners. In that case N. H. Bhatt, J. (as he then was) in para 9 of the report took the view that when the State Government took lot of time in sanctioning the draft development plan with modifications which were suo motu published by the State of Gujarat, the plan had lapsed. However, before the learned single Judge, it was not contended on behalf of the authority that on the scheme of the Act, there was no time prescribed for sanctioning the modified draft development plan after suo motu inviting objections for substantial modifications as per Section 17(1)(a)(ii) proviso read with Section 17(c) of the Act. As such a contention was never canvassed, the learned Judge had no occasion and opportunity to deal with the same. Consequently, the ratio of the aforesaid case cannot be of any avail to the petitioners. The limited point urged before him was whether the period of limitation prescribed for sanctioning of the plan as per Rule 7 was directory or mandatory. The said decision, therefore, proceeded on the assumption that there was a time limit prescribed for such an exercise. We have already shown earlier that once the State Government suo motu seeks to modify the draft development plan and when modifications are of substantial nature and when objections are invited by the State Government itself, there is no period of limitation prescribed by the legislature or by the Rule making authority for completing such exercise. In these circumstances, the very assumption which was made before the learned single Judge by the learned Advocate for the respondents who tried to support such exercise was, with respect, unjustified and, therefore, the aforesaid decision is of no avail to the petitioners. It must, therefore, be held that the final conclusion to which N.H. Bhatt, J. reached on facts of that case about lapse of the plan is contraindicated by the scheme of Section 17 of the Act and has to be held, with respect, as incorrect
19. Again this Court in Devjibhai B. Chudasama v. State of Gujarat , has held:
There is nothing in the Rule to spell out that the modification must be proposed within 12 months. If that be so, the provision under Rule 7 cannot also be considered as mandatory. Even apart from this fact, a Bench of this High Court had an occasion to consider Rule 7 in the case of Kikabhai v. State reported in 1988 (1) GLR 569. In that case, a Bench of this High Court observed that in cases where the State decides to introduce substantial modifications in the proposed development plan suo motu, the requirement of finishing such exercise within a fixed time limit is not found anywhere in the said section.
20. The learned Advocate General and the learned Counsel for the Corporation also drew our attention to the fact that when Legislature so thought it fit to provide for, it has specifically provided when something done can be said to have lapsed. They drew our attention to Section 11(3) wherein it was specifically provided that if the designated land was not acquired by agreement within ten years from the date specified under Sub-section (3) of Section 10 or if proceedings under the Land Acquisition Act, 1894 were not commenced within such period, the owner or any person interested in the land could serve notice to the local authority and if within six months from the date of the service of such notice the land was not acquired or no steps as aforesaid were commenced for its acquisition, the designation was to be deemed to have lapsed. They also invited our attention to Section 23(3) which read as under:
23(3) If such publication is not made by the State Government within the further , period specified in Sub-section (2), the declaration of intention to make such scheme shall lapse, and until a period of three years has lapsed from the date of such declaration, it shall not be comptent to the local authority to declare its intention to make any town planning scheme for the same area or for any part of it.
21. It was submitted mat no such provision was made in Section 10 of the Act and, therefore, also it should be held that the Legislature never intended that the plan should lapse even if the action under Section 10 was not taken by the State Government within the prescribed time. In our opinion, there is much substance in this contention raised on behalf of the appellants. We fail to appreciate how lapsing can be regarded as a consequence by necessary implication. Merely because some restrictions were placed by Section 12 of the Act of 1954 on the right to develop land, that cannot be regarded as justification for reading into the provision that the effect of non-compliance by the State Government within the prescribed time was to have that effect or consequence. We cannot construe Section 10(1)(a), as contended by the learned Counsel for the original petitioners. We fail to appreciate how the word "may" used in Section 10(1)(a) can be read as "shall" merely because it puts some restrictions on use or development of land. He submitted that the Division Bench judgment on which heavy reliance is placed by the appellant cannot be said to have concluded this point as that case was not on all fours and as pointed out in that very judgment, it was not necessary for the Division Bench to decide the question as to whether the said provision was mandatory or not. Even if we proceed on the basis that the said judgment has not concluded the point, mere is no reason why we should not agree with the reasons given therein for the purpose of holding that Section 10(1)(a) is not mandatory.
22. It was next contended by the learned Advocate for the appellants that the reasoning of the learned single Judge that the Government in considering the stale proposals made by the Corporation and ignoring the proposals made by AUDA which is a more comptent authority, acted in bad faith and that also vitiated its decision to approve the plan is erroneous and bad because the learned single Judge has proceeded on an erroneous assumption that the revised plans submitted by the Corporation had either lapsed or were superseded by the revised plan prepared by the AUDA under the new Act, particularly when under the new Act the exclusive power of AUDA was to prepare such plan. In this connection, the learned Counsel for the Corporation drew our attention to the fact that though the AUDA had prepared a development plan for the whole of the area within its jurisdiction so far as the area covered by the city of Ahmedabad is concerned, it did not prepare a separate plan but adopted the plan which was prepared by the Corporation. He also drew our attention to the affidavit-in-reply filed by the Town Development Officer of the Corporation wherein it is stated that AUDA regulation No. 11.10 does not provide for the maximum permissible FSI of 1.5 in resepct of final plots abutting on the Ashram Road as referred to in para 20 of the Schedule to the Government Notification dated 12-3-1983 sanctioning the Revised Draft Development Plan and Regulations thereto. AUDA Regulation 11.10 provides for the maximum limit of FSI 1.5 in me city centre areas which do not include final plots abutting on the Ashram Road. We, therefore, do not see any conflict between the draft revised plan approved by the State Government and the development plan prepared by the AUDA and me Regulations framed by it. It appears that me learned single Judge has not considered the aspect that the AUDA has not prepared a separate plan for the city area and that it has not provided a different FSI for the plots situated on the Ashram Road. Thus, the finding recorded by the learned single Judge in this behalf is vitiated.
23. One more reason given by the learned single Judge for striking down the impugned notification is that in approving the plan and in fixing the FSI of 1, the Government acted in an arbitrary manner. In taking this view, the learned single Judge was influenced by the fact that the Corporation itself had in 1978 and 1981 suggested the FSI of 1.5 and that expert body like AUDA had also suggested the FSI of 1.33. Inspite of that the State Government accepted the proposal made by the Corporation at a late stage and that too behind the back of the persons, who were likely to be affected by it. The learned single Judge has also held,"... There is no rational reason to distinguish between the front parts abutting on Ashram Road and the other parts", and for that reason also the fixation of FSI of 1 on the Ashram Road should be regarded as arbitrary. In fact, the learned single Judge has gone to the extent of critising the action of the Government as adoption of "double standards". The learned Advocate General and the learned Counsel appearing for the Corporation submitted that the reasoning of the learned single Judge and also the finding recorded by him in this behalf are bad because it cannot be said that the Government adopted "double standards" in making the distinction between the plots abutting on the Ashram Road and the plots situated on the back side of those plots. They submitted that while determining FSI of lands situated on a particular road or in a locality the factors like congestion of traffic, water supply, drainage, density of population and environmental consideration are required to be considered. These considerations have different impacts on buildings abutting on the main road and on the buildings located in the rear. They also emphasised the fact that the Ashram Road is a highly developed locality of the city and considerable local as well as high way traffic passes through it. They also invited our attention to the reply affidavit filed by the Town Development Officer and submitted that FSI is not merely related to congetion of buildings as suggested by the petitioners but would also depend upon various other considerations pointed out in the affidavit. In view of the development on the Ashram Road and the construction of multistoreyed or high-rise buildings, the Corporation had thought it fit to fix FSI of 1 for the plots abutting on the Ashram Road. As the development of plots on the rear with more FSI was not likely to have an adverse effect on the relevant factors, a higher FSI has been fixed for the same for the benefits of the land owners.
24. In our opinion, the learned single Judge did not consider all these aspects and has held the action of the State Government as arbitrary mainly because of the fact that earlier it had suggested a FSI of 1.55 and the AUDA has suggested the FSI of 1.33. As pointed out earlier, AUDA has not suggested the FSI of 1.33 for Ashram Road. It has not prepared a separate plan for the city of Ahmedabad and has merely adopted the plan prepared by the Corporation. In that sense, it can be said that even the AUDA has agreed that the FSI on Ashram Road should be 1. We are, therefore, of the opinion that the learned single Judge was in error in holding the impugned action of the State Government as arbitrary.
25. It was next submitted by the learned Counsel for the petitioners that as the Corporation's plan was adopted by the AUDA, at the highest, the plan prepared by the Corporation can be regarded as AUDA's plan and, therefore, the plan prepared by the Corporation cannot be said to have survived thereafter. The State Government, therefore, could not have approved the plan submitted by the Corporation and for that reason also the action of the State should be regarded as arbitrary. We find no substance in this contention. We have already stated earlier that the plan prepared by the Corporation had not lapsed, as in view of the saving clause contained under the 1976 Act the plan was still available for consideration by the State Government and all further steps taken by the Government can be said to have been taken under the 1976 Act. In view of the said saving clause, the plan which was pending for consideration was required to be dealt with from that stage onwards in accordance with the provisions of the 1976 Act and, therefore, the Government cannot be said to have acted arbitrarily or unreasonably in approving the said plan.
26. In the result, we allow these appeals and set aside the judgment of the learned single Judge. We hold that the impugned notification issued by the Government was quite valid and, therefore, the action of rejection of revised plans by the Corporation was also valid and for that reason we dismiss the petitions. These appeals are allowed with costs.