Bombay High Court
Suvina B. Redkar vs Government Of Goa And Ors. on 2 August, 1991
Equivalent citations: 1991(4)BOMCR695
JUDGMENT H.W. Dhabe, J.
1. These two writ petitions which challenge the Notification of the State Government dated 26th June, 1991 issued under sub-section (3) of section 18 of the Goa, Daman and Diu Town and Country Planning Act, 1974 and its further consequential notification dated the same issued under sub-sections (1) and (3) of section 20 of the said Act can conveniently be disposed of by this common judgment. However, reference to the parties in this judgment would be as in the Writ Petition No. 240 of 1991 except where W.P. No. 243 of 1991 is particularly considered and referred to.
2. The facts in Writ Petition No. 240 of 1991 are that the petitioner is the Chair-person of the South Planning and Development Authority and in Writ Petition No. 243 of 1991, the petitioner is the Goa Citizens League, which holds out itself as a Special activist organisation formed with a view to promoe social, economic and educational cultural and political interests for achieving the progress and welfare of the citizens of Goa. It is made clear that the locus standi of the above petitioners to maintain the writ petitions preferred by them is not impugned before us.
3. After the Goa, Daman and Diu Town and Country Planning Act, 1974 (for short the Act) came into force sometime in 1975, the State Government issued a Notification under section 18 (1) of the said Act on 19-11-1976 declaring Margao Area as a planning area for the purposes of the Act so that the provisions of the Act were applicable to the said area. After the Notification declaring Margao Planning Area was issued on 19-11-1976, the State Government constituted the Planning and Development Authority for the said area known as "Southern Planning and Development Authority" (for short S.P.D.A.) by issuing an appropriate Notification under section 20 of the Act on 30-1-1977.
4. Although the State Government had on 19-11-1976 issued a notification under section 18(1) of the Act declaring Penda area also as a planning area for the purposes of the Act, no Planning and Development Authority was constituted for the said area under section 20 of the Act till 1986 when it was brought within the jurisdiction of the S.P.D.A. which was constituted for Margao Planning area as shown above. In 1988, Colva, Benaulim and Cavelessim were declared as planning areas for the purposes of the Act under section 18(1) of the Act and they were also brought within the jurisdiction of the S.P.D.A. by the State Government. The S.P.D.A. thus exercised jurisdiction over all the above Planning Areas till March, 1990. However, in April/May,1990, the Penda Planning Area was taken out from the jurisdiction of the S.P.D.A. and a separate Planning and Development Authority was formed for the said Planning Area by issuing an appropriate Notification under section 20 of the Act.
5. However, thereafter there was a proposal of the Government again to amalgamate the Ponda Planning Area with the above Planning Areas within the jurisdiction of the S.P.D.A. It is with a view to implement the said proposal that the State Government issued in consultation with the Goa Town and Country Planning Board the Notification dated 26-6-1991 under section 18(3) of the Act amalgamating the Penda Planning area and the planning areas within the jurisdiction of the S.P.D.A. i.e. Margao, Colva, Benaulim and Cavelossim planning areas to be known as "South Goa Planning Areas". The exact areas which are comprised in the said South Goa Planning area are mentioned in the said Notification dated 26-6-1991. After thus forming the South Goa Planning are by the process of amalgamation as provided under section 18(3) of the Act, the State Government constituted on the same day in consultation with the aforesaid Board a new Planning and Development Authority, known as "South Goa Planning and Development Authority, Penda", for the aforesaid "South Goa Planning Area" by issuing a Notification under sub-sections (1) and (3) of section 20 of the Act. The Chairman and the members of the said authority are named in the aforesaid Notification dated 26-6-1991.
6. Feeling aggrieved by the aforesaid Notifications issued under section 18(3) as well as under sub-sections (1) and (3) of section 20 of the Act, the petitioner in Writ Petition No. 240 of 1991, who is the Chair-person of the S.P.D.A. has challenged the said Notification by way of the Writ Petition No. 240 of 1991. Similarly, Goa Citizens League which as already pointed out is a Social activist Organisation has also challenged the said Notifications by filing Writ Petition No. 243 of 1991.
7. In challenging the aforesaid Notifications dated 26-6-1991 issued by the State Government under section 18(3) as well as under sub-section (1) and (3) of section 20 of the Act, the learned Counsel for the petitioner in W.P. No. 240 of 1991 has raised before us the following contentions :
(i) There has no affective consultations with the Goa, Daman and Diu Town Planning Board (for short the Board) before amalgamating the planning areas in question under the impugned Notification dated 26-6-1991, the said requirement under section 18(3) of the Act being mandatory. Even assuming the requirement of consultation with Board thereunder to be directory there is no substantial compliance with the said requirement.
(ii) Section 18(3) of the Act is not applicable for amalgamating and/or extinguishing Planning and Development authorities.
(iii) The exercise of power conferred upon the State Government under section 18(3) of the Act suffers from its legal mala fides as the said power is exercised in a colourable manner for collateral or extraneous purposes not germane to the Act.
(iv) Section 18(3) of the Act confers administrative power and not legislative power upon the State Government and hence compliance with the principles of natural justice is necessary before exercising the power thereunder.
(v) Assuming that section 18(3) conferred a legislative power upon the State Government, it is a piece of delegated legislation and not conditional legislation for which there is no legislative guidance to the delegate under the Act. As such the provisions of section 18(3) of the Act are liable to be struck down on the ground of excessive delegation.
(vi) Even if it is a legislative power, where conditional or delegated, reasonableness of the exercise of the power can be enquired into by the Court and the Administrative authority upon whom such power is conferred must satisfy all the tests which its administrative action has to satisfy.
(vii) There is no material before the State Government for exercising its power under section 18(3) of the Act and therefore its action thereunder by way of the impugned Notification dated 26-6-91 whether administrative or legislative in nature suffers from non application of its mind and is therefore liable to be struck down.
(viii) Section 18(3) of the Act is ultra-vires of Article 14 of the Constitution being discriminatory and unreasonable and is therefore liable to be struck down. At any rate, the action taken thereunder of amalgamating the planning areas referred to above as per the impugned Notification dated 26-6-1991 is arbitrary, discriminatory, unreasonable and contrary to the principles of natural justice and is thus liable to be struck down under Article 14 of the Constitution.
8. As regards Writ Petition No. 243 of 1991 apart from above grounds the two grounds raised therein are as under :---
(a) The action of the State Government in issuing the Notification dated 26-6-1991 under section 18(3) as well as under sub-sections (1) and (3) of section 20 of the Act suffers from malafides, actual and legal.
(b) A duty or an obligation should be read in section 18(3) of the Act to invite objections and suggestions from the inhabitants of the Planning Areas which are sought to be amalgamated or sub divided and an opportunity of being heard should be given to them besides the Planning & Development Authorities concerned before any action under the said section 18(3) of the Act is taken by the State Government and for failure to do so the impugned Notification dated 26-6-91 under section 18(3) of the Act is illegal, invalid and is liable to be set aside.
9. To appreciate the rival submissions of the parties in the instant writ petitions, it is necessary to understand the purpose and the scheme of the Act. The preamble shows that it is enacted to provide for Planning the development and use of rural and urban land in the Union Territory of Goa, Daman and Diu and for the purposes connected there with. Perusal of the Statement of Objects and reasons annexed to the Bill of the Act shows that since it was felt that there should be consolidated piece of legislation for creating conditions favourable for planning and replanning of Urban and rural areas in the Territory, providing full civic and social amenities for the people and also to stop uncontrolled development of land due to land speculation and profiteering in lands and to ensure that town Planning Schemes are made in the proper manner, the Bill was introduced in the Legislative Assembly to enact such a law.
10. Before we elaborate with reference to its various provisions, broadly spealing, the scheme of the Act would reveal that the town planning activity undertaken by the State thereunder is that there is a Regional Plan prepared by the Chief Town Planner and sanctioned by the State Government for any part or parts of the State which provides for the broad demarcation of various areas to be reserved for several purposes of agricultural, forestry, industry, mineral development and the Urban and Rural settlement and other activities. There are other broad features which are also taken into consideration and are shown in the regional plan. It appears from the scheme of the Act that the planning and development activities of the Government are decentralised by constitution of Planning Areas for which a Planning and Development Authority is constituted which is a body corporate under the Act.
11. As regards the activities of the Planning and Development Authority in relation to the Planning Area under its jurisdiction, it has to prepare a map and register showing present land use within its jurisdiction. It has also to prepare with the approval of the Government an outline development Plan and also a comprehensive development Plan for planning the development of the Planning Areas within its jurisdiction. As regards these development plans, viz. the Regional Plan, the Outline Development Plan, and the Comprehensive Development Plan, they constitute concentric circles and one is more detailed and specific than another as you go from the regional plan to the Comprehensive Development Plan.
12. Apart from the above duties, in relation to preparation of development plan, the Planning and Development Authority is charged with the duty to prepare a Town Planning Scheme within the framework of the development plan, which is a detailed scheme as regards the actual development to be made in the planning area under its jurisdiction. This scheme also needs final approval of the Government.
13. Besides these principal activities, the Planning and Development Authority has to discharge the other routine or day to day duties such as granting permission to the inhabitants in its jurisdiction for construction or development on their land or change or user of the land against which an appeal is provided to the Board. It is with a view to effectuates the above broad town planning scheme of the State that the detailed provisions are enacted in the Act.
14. We shall briefly refer to the relevant provisions of the Act which have bearing upon the questions raised in these Writ Petitions. Section 2 of the Act which provides the dictionary for the words used in the Act defines inter alia the following expressions as under :---
(10) Development " With its gramatical variations and cognate expression means the carrying out of building, engineering, mining quarrying or other operations in, on over or under, land the cutting of a hill or any portion there of or the making of any material change in any building or land, or in the use of any building or land and includes sub-divisional of any land ;
(11) Development Plan : means an outline Development Plan or a Comprehensive Development Plan prepared under this Act.
(17) Land use : means the major use to which a plot of land is being used an any specified date;
(23) Planning and Development Authority : means and Planning and Development Authority constituted under this Act.
(24) Planning Area : means any are declared to be a Planning area under this Act.
15. Section 3 of the Act empowers of the Government to appoint by notification, a person possession the prescribed qualifications in Town and Country Planning as the Chief Town Planner for the purposes of the Act. He is an important functionary under the Act as will be clear when we refer to the provisions of the Act and he Acts as the Member Secretary of the Board also.
16. It is very much necessary to refer to the constitution, functions and powers of the Board under the Act in order to understand the role and importance attached to it under the Act. Sub-section (2) of section 4 of the Act provides for its constitution as under :---
Section 4(2) : The Board shall consist of the following members, namely :---
(a) The Minister incharge of Town & Country Planning, who shall be the Chairman thereof.
(b) Secretaries to Government in the departments dealing with the following subjects namely:
(i) town & country planning.
(ii) Self Government.
(iii) planning; and
(iv) industry
(c) Head of the Public Works Department.
(d) Head of the Forests Department.
(e) Director of Agriculture;
(f) Director of Tourism.
(g) Director of Transport;
(h) Director of Health Services.
(h.1) Director of Bureau of Economic, Statistic and Evaluation :
(h.2) Director of Fisheries:
(i) Four members nominated by the Central Government to represent respectively the Ministries of that Government dealing with;
(i) railways;
(ii) defence;
(iii) transport; and
(iv) tourism;
(j) two persons having special knowledge of, and practical experience in, matter relating to town and country planning, architecture, engineering, transport, industries, commerce, agriculture or geology to be nominated by the Government.
(k) One person deputed by Chamber of Commerce and Industries, Goa.
(l) two members of the Legislative Assembly to be elected by the members thereof.
(m) The Chief Town Planner, Member Secretary.
17. Section 8 of the Act which deals with the functions and powers of the Board is reproduced below for ready reference :
Section 8 :
(1) Subject to the provisions of this Act and the rules made there under, the functions of the Board shall be to guide, direct and assist the Planning and Development Authorities, to advise the Government in matters relating to the planning, development and use of rural and urban land in the Union Territory and to perform such other functions as the Government may, from time to time assign to the Board. (2) In particular, and without prejudice to the generality of the foregoing provisions the Board may, and shall if required by the Government so to do -----------
(a) direct the preparation of development plans by the Planning and Development Authorities;
(b) undertake, assist and encourage the collection, maintenance and publication of statistics, bulletins and monographs on planning and its methodology ;
(c) co-ordinate and advise on the planning and implementation of physical development programmes within the Union territory.
(d) prepare and furnish reports relating to the working of this Act; and
(e) perform such other functions as are incidental, supplemental or consequential to any of the function aforesaid or which may be prescribed.
18. It is then necessary to refer to the Goa, Daman and Diu Town and Country Planning Board Rules, 1976 (for short 'the Board Rules') framed by the Government in exercise of its powers under sub-section (2) of section 140 of the Act read with sections 5 and 7 of the Act. The material rule for us in Rule 6 which provides the procedure to be followed in regard to the transaction of the business at the meetings of the board. Sub-rules 1, 2 & 4 of Rule 6 are reproduced below for ready reference.
Rule 6 :
(1) The Board shall meet at such time and place as the Chairman may determine.
(2) Twenty days notice at least specifying the place, date and the hour of the meeting and the agenda shall be given to the members but the non-receipt of such a notice by any member shall not invalidate the proceedings of the meeting.
(4) The quorum necessary for the transaction of business at any meeting of the board shall be one half of the total number of members of the Board. If the requisite number of members is not present, the meeting shall stand adjourned meeting not requiring a quorum.
19. Chapter III of the Act deals with the preparation of regional plans for any part or parts of the State. Section 9 of the Act requires the Chief Town Planner as may be directed by the Government to prepare regional plans for any part of the State. The contents of a regional plan are enumerated in section 11 of the Act. As already pointed, out, above it contains broad demarcation or reservation of areas for the various purposes such as agriculture, forestry, industry, mineral development, urban and rural settlements and other activities. It also contains other details referred to in section 11 of the Act. After preparation of the Regional Plan and the report explaining the various aspects of development proposed in such plan as required by section 10 of the Act, the Chief Town Planner has to submit the said Plan to the Board for its consideration as per section 12 of the Act according to which he can make suitable changes in the plan in the light of the views expressed by the Board.
20. Section 13(1) of the Act then requires the Chief Town Planner to notify the regional Plan in the Official Gazette and in two or more local newspapers and to invite comments in writing from the public in regard to the same with the specified period. The Chief Town Manner has to refer the comments from the public received by him to the Board for its consideration as provided in sub-section (2) of section 13 of the Act. Sub-section (3) of section 13 of the Act then provides that the Chief Town Planner can revise the regional plan and his report in the light of any modification which may be suggested by the Board. He has to then submit the Regional Plan, the report and the comments received from the public to the State Government.
21. Section 4(1) of the Act confers the power upon the State Government to either approve the regional plan with or without modifications or to return it to the Chief Town Planner with instructions either to modify it or prepare a fresh regional plan in accordance with the directions which it may issue in this regard. For preparation of a fresh regional plan the same procedure as provided in sections 12 and 13 of the Act is applicable as is clear from sub-section (2) of section 14 of the Act. The Chief Town Planner is required to publish the regional plan approved by the State Government in the Official Gazette and in two or more local newspapers under section 15 of the Act and on such publication being made the regional plan as provided in section 16 of the Act becomes operative in the area for which it is made in the sense that all development programmes undertaken within that area by any department of the Government or by public and private institutions or by any other person have to conform to the provisions of such regional plan. Section 17 of the Act empowers the Government to direct the Chief Town Planner to revise the regional plan for which the same procedure of preparing is applicable.
22. It may be seen that perusal of the definition of the expression, "Planning area" given in section 2(24) of the Act shows that Planning area means an area declared to be a planning area under the Act. Accordingly, sub-section (1) of section 18 empowers the Government to declare by notification any area to be a planning area for the purposes of the Act and on such declaration only, the Act is applicable to such a Planning Area. Sub-section (2) of section 18 requires the State Government to define the limits of the area, which is declared by it a Planning Area by a notification under sub-section (1) of section 18 of the Act. Sub-section (3) of section 18 then enables the State Government after consultation with the Board to amalgamate two or more planning areas into one Planning are a or sub-divide a Planning area into different planning areas and to include any such sub-divided areas or areas in any other planning area. Sub-section (4) of section 18 of the Act empowers the State Government to adopt for the new planning area or areas so amalgamated or sub-divided or included the rules, regulations, bye-laws notifications, orders, directions and powers etc. made issued or conferred and in force in any Planning area at the time of amalgamation, sub-division or inclusion under sub-section (3) of section 18 of the Act with such exceptions, adaptation or modifications as may be specified by the Government in the Notification issued in this behalf. Sub-section (5) of section 18 of the Act empowers the Government, after consultation with the Board, the Planning and Development Authority or Authorities concerned to frame a scheme in relation to the fund, property and liability of the Planning and Development Authority or Authorities of the Planning areas concerned.
23. Sub-sections (1) and (3) of section 18 of the Act with which we are primarily concerned in these writ petitions are reproduced below for ready reference :---
Section 18 :---Declaration of Planning areas, their amalgamation, sub Division etc. :
(1) The Government may, by notification, declare any area to be a planning area for the purposes of this Act and on such declaration this Act shall apply to such area :
Provided that no cantonment area or part thereof shall be included in a Planning Area. (3) The Government may, after consultation with the Board, amalgamate two or more planning areas into one planning area or sub-divide a planning area in to different planning areas and may include any such-divided are or areas in any other planning area.
24. Section 19 of the Act confers upon the Government the power to withdraw by issue of an appropriate notification in that regard any planning area from the operation of the provisions of the Act, if in its opinion, it is necessary to do so in the public interest. The said section then provides for consequential matters arising out of withdrawal of the application of the Act to the Planning areas. It is however, material to see that while preparing a scheme, under clause (ii) of sub-section (2) of section 19 of the Act determining the portion or portions of the balance of the fund of the Planning and Development Authority concerned which is to vest in the Government and in the local authority or authorities concerned, the Government has to consult the Board, the Planning and Development Authority and the local authority or authorities concerned.
25. Sub-section (1) of section 20 of the Act provides for constitution or establishment of the Planning and Development Authority by the Government in consultation with the Board, after any area is declared by it as a Planning area known as the "Planning and Development Authority" for the said area for the purpose of performing the functions assigned to it under the Act. Sub-section (2) of section 20 of the Act makes such "Planning and Development Authority" a body corporate with power to acquire, held and dispose of property both moveable and immoveable. Sub-section (3) of section 20 of the Act provides for the composition of the Planning and Development Authority constituted under sub-section (1) thereof. It is pertinent to see that there is no direct representation to the people within the jurisdiction of the Planning Area upon the Planning and Development Authority whose composition under sub-section (3) of section 20 of the Act shows that, except the Chairman who is appointed by the Government and the Town Planning Officer also appointed by the Government to be its Member Secretary, its other members are representatives of the local authorities concerned and the experts appointed by the Government.
26. Sub-section (3) of section 20 of the Act is as under :
(3) Every Planning and Development Authority constituted under sub-section (1) shall consist of the following members, namely :
(i) A chairman to be appointed by the Government :
(ii) A Town Planning Officer to be appointed by the Government in consultation with the Chief Town Planner who shall be the Member Secretary of the Planning and Development Authority:
(iii) representatives of Local Authorities to be composed as follows:--
(a) in the case of Planning area in which only one local authority has jurisdiction, a representative nominated by that local authority from among its members and the Chief Executive Officer of that local authority;
(b) in the case of a planning area in which two or more local authorities have jurisdiction, representatives of such local authorities as the Government may consider necessary to be represented;
(iv) such number of other member, not exceeding three, appointed by the Government who in the opinion of the Government, have special knowledge of, or practical experience in, matters relating to town and country planning, architecture, engineering, transport, industry commerce and agriculture.
27. Perusal of sub-section (5) of section 20 of the Act shows that instead of appointing a separate Planning and Development Authority, the Government can in consultation with the Board appoint any local authority itself as the Planning and Development Authority for the area comprised within the local limits of the jurisdiction of such local authority and for such other contiguous or adjacent area or areas as the Government may declare as a planning area under section 18(1) of the Act.
28. According to section 21 of the Act the term of office and conditions of service of the Chairman and the member of the Planning and Development Authority are as prescribed and the relevant rules framed for the said purpose are known as Goa, Daman and Diu Town and Country Planning (Planning and Development Authority), Rules, 1977 (for short the P.D.A. Rules). Suffice it to say that sub-rule (1) of Rule (3) of the aforesaid Rules prescribes the tenure of the office of the Chairman and members of the authority as 2 years from the date of the Notification of their appointment and sub-rule (5) thereof provides for an honorarium of Rs. 500/- P.M. to the Chairman and sub-rule (6) the travelling and daily allowances to its members.
29. To understand the functions and powers of the Planning and Development Authority, section 22 of the Act which deals with the same is reproduced below.
Section 22 :---
FUNCTIONS AND POWERS OF PLANNING AND DEVELOPMENT AUTHORITY.
Subject to the provisions of this Act and the rules framed there under and subject to any directions which the Government may give, the functions of every Planning and Development Authority shall be ---
(a) to prepare an Existing Land Use Map;
(b) to prepare an outline Development Plan;
(c) to prepare a Comprehensive Development Plan;
(d) to prepare and prescribe uses of land within its area; and
(e) to prepare schemes of development and undertake their implementation.
and for those purposes, it may carry out or cause to be carried out, surveys of the Planning area and prepare reports of such surveys, and to perform such other functions as may be prescribed.
30. The detailed functions of the Planning and Development Authority are contained in Chapter-V, Chapter-VI, Chapter-VII and Chapter-VIII of the Act relating to the present land use, preparation of development plan, central of land use and preparation of Town Planning Scheme respectively.
31. Section 26 of the Act deals with the preparation of map and register for which the procedure is provided under section 27 of the Act. The procedure under section 27 of the Act shows that the Planning and Development Authority has to publish a public notice stating that a map and register of present land use has been prepared by it and inviting objections in writing from any person with respect to the same, within the period mentioned in the Notice. After such objections are received, the Town Planning Officer of the Planning and Development Authority or a Committee appointed for that purpose has to give an opportunity of being heard in person to those who have sent their objections as provided in sub-section (3) of section 27 of the Act. After the report upon the objections is received, the Planning and Development Authority has to consider under sub-section (4), the said report and it can make such modifications in the map or register or both as it considers proper and adopt the map and the register by means of a resolution. After the adoption of the map and Register, the Planning and Development Authority is required to publish a Notice of the adoption of the map and Register as provided in sub-section (5) and has also to submit copies of the same to the Board and the Government, in the prescribed form.
32. If the Planning and Development Authority fails to prepare the map and register within six months from the date of its consultation or appointment as provided under section 26 of the Act, the Government is empowered under section 28 of the Act to get such Map and register prepared through the Chief Town Planner, who is an officer appointed by the Government under section 3 of the Act. It is, however, material to see that as provided in sub-section (2) of section 28 of the Act, the Chief Town Planner has to submit the map and register, after its preparation, to the Board which for the purpose of adopting the map and register so prepared has to follow the procedure and exercise the power of the Planning and Development Authority specified in section 27 of the Act.
33. As regards the preparation of the Outline Development Plan, such plan has to be prepared by the Planning and Development Authority not later than one year from the date of its constitution or appointment, as the case may be as provided in section 29 of the Act. Its contents are given in section 38 of the Act. Similarly, a comprehensive Development Plan has to be prepared by the Planning and Development Authority not later than three years from the date of its constitution or appointment as the case may be as required under section 31 of the Act. The contents of such Comprehensive Development Plan are given in section 32 of the Act. It is clear from section 29 to 31 of the Act that the Planning and Development Authority is required to submit the Outline Development Plan and the Comprehensive Development Plan to the State Government, after it is prepared.
34. If the Development Plan, whether Outline Development Plan or Comprehensive Development Plan, is not prepared by the Planning and Development Authority, within the specified period, it is open to the Government to get it prepared through the Chief Town Planner, who after its preparation has to submit it to the Board as provided in section 33 of the Act. The Board, thereafter is required to follow the same procedure and exercise the same power as the Planning and Development Authority would follow or exercise under the Act. The said procedure which the Planning and Development Authority has to follow and the power which it exercise in preparation of the Development Plan are given in sections 34 to 37 of the Act. The Development Plan, which is prepared either by the Planning and Development Authority or by the Board in accordance with section 33 of the Act, is required to be submitted to the Government whose consent is necessary for the publication of the Notice of preparation of the Development Plan as provided in section 34 of the Act. The Government can grant its consent to the Development Plan with or without modifications.
35. Sub-section (1) of section 35 of the Act then provides that after such consent is granted to the publication of the Development Plan with or without modifications by the Government, the Planning and Development Authority has to publish the same by issuing a Notification and also in one or more local newspapers as prescribed therein. By the said publication, it is required to invite objections in writing to the Development Plan within such periods as may be specified in the Notice. The said Notification is treated as a notification duly made under section 4 of the Land Acquisition Act, 1894 by virtue of sub-section (2) of section 35 of the Act. The objections received under sub-section (1) of section 35 of the Act are required to be considered by the Committee consisting of the Town Planning Officer and not more than two of its other Members as provided in sub-section (3) of section 35 of the Act. Sub-section (5) of section 35 of the Act requires the said committee to give an opportunity of being heard to all persons including the representatives of the Government Department and the local authorities, who have raised objections to the Development Plan and have a made a request for being so heard. After the receipt of the report of the committee, as per sub-section (6) of section 35 of the Act; the Planning and Development Authority can make any alterations, modifications in the Development Plan in the light of the report of the committee. It has to then submit the Development Plan with or without alternatives or modifications together with the report of the committee to the Board and to the Government.
36. Section 36 of the Act confers the power upon the Government to grant approval in consultation with the board, to the Development Plan submitted by the Planning and Development Authority with or without modifications. It can also return the Development Plan to the Planning and Development Authority to alter to modify it or to prepare afresh plan in accordance with its directions. Section 37(1) of the Act provides for coming into operation of the Development Plan, which has been approved by the Government by requiring its immediate publication in the notification by the Planning and Development Authority and also in one or more local news papers indicating therein the place at places where copies of the Development Plan can be inspected. Section 37(2) of the Act treats such publication by notification of the approved Development Plan as a declaration duly made under section 6 of the Land Acquisition Act, 1894. Section 41 of the Act provides that, any land required, reserved and designated in a development is then deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 and can be acquired thereunder.
37. Section 38 of the Act provides for an appeal against any provisions contained in the Development Plan to the District Court by any person aggrieved by such provisions. The District Court is empowered to quash the Development Plan or any provisions contained therein.
38. Section 39 of the Act provides for alternation of the Development Plan and making minor changes therein as may be considered necessary by the Planning and Development Authority or as may be directed by the board and the Government and the Planning and Development Authority has to, after consultation with the local authorities concerned, follow the same procedure as laid down under sections 34 to 38 of the Act for preparation of the Development Plan for alternations or additions.
39. Chapter VII deals with the actual development activity and the use of the land within the jurisdiction of the Planning and Development Authority. According to section 42 of the Act the land use has to confirm to the Development Plan. Section 43 of the Act requires that any person who wants to make any development in respect of, or change of use of any land should pay the development charge for the same to the Planning and Development Authority as leviable under section 100 of the Act and further he cannot undertake any such work without obtaining the permission of the Planning and Development Authority in accordance with the provisions of section 44 of the Act. Section 44 of the Act empowers the Planning and Development Authority to grant such permission for any development work in respect of, or change of use of, any land subject to such conditions as it may deem fit. If any person is aggrieved by an order passed under section 44 or omitted to be passed under section 44 of the Act by the Planning and Development Authority, he can prefer an appeal against the same to the Board which after hearing him can grant permission conditionally or unconditionally as the case may be. As per section 46 of the Act, the permission granted under the Act is valid for 3 years.
40. Section 47 of the Act requires the Government to acquire the land, if the notice to that affect is given by the person to whom the permission for development is refused. Section 50 of the Act enable the Planning and Development Authority to revoke of modify the permission granted by it for development of the land. The other provisions of this Chapter deal with removal or stopping of illegal development made by any person within the jurisdiction of the Planning and Development Authority. Section 55 of the Act enables the Planning and Development Authority to carry on development activity, pending preparation of the Development Plan having regard to the provisions which in its opinion would be required to be include in such Plan for securing the proper planning of the concerned area.
41. Chapter VIII deals with the Town Planning Schemes which are detailed schemes framed by the Planning and Development Authority containing the provisions enumerated in section 56(2) of the Act. After preparation of the Draft Town Planning Scheme section 58 of the Act requires the consent of the Government to the draft scheme which is to be submitted within the time prescribed. Before granting its consent, the State Government can ask the Planning and Development Authority to make such modifications in the Town Planning Scheme as it may require it to make. Section 59 of the Act then provides for publication of the Draft Scheme by notification in the Gazette and also in the local newspapers and inviting objections in writing from any person with respect to the draft scheme within such period as may be specified. Section 60 of the Act enumerates the contents of the draft scheme.
42. If the Planning and Development Authority does not prepare the Draft Town Planning Scheme, the Government can compel it to do as provided in section 63 of the Act, failing which as provided in sub-section (2) of the said section, it can appoint an Officer to do so. The claim about the disputed ownership of the land for the purposes of the draft Scheme can be gone into and decided by any officer appointed by the Government as provided in section 65 of the Act. Section 66 of the Act provides for an urgency clause to take the possession of the land from the owner forth with for the works included in the Draft Scheme. Section 67 of the Act then provides that, if majority of the owners in the area for which the Draft Scheme is framed make a representation that the said scheme should be withdrawn, the Planning and Development Authority has to forward the said representation to the Government which can after making such enquiry as it may deem fit direct that the said Town Planning Draft Scheme should be withdrawn and upon such withdrawal no further proceedings can be taken in regard to such draft scheme.
43. Sub-section (1) of section 68 of the Act requires that the Planning and Development Authority should consider the objections received by it to the Draft Scheme within one month from the date of the publication of the Draft Scheme. It can modify the draft scheme in the light of the objections received by it before submitting it to the Government. The Planning and Development Authority has to submit the Draft Scheme to the Government for its sanction within four months from the date of its publication as provided under sub-section (2) section 68 of the Act. Sub-section (3) of section 68 of the Act then shows that after receiving the same and making such enquiry as it may deem fit, the Government in consultation with the Board, by notification, within six months from the date of receipt of the draft scheme is required to either sanction such scheme with or without modifications or to return the same to the Planning and Development Authority for preparing a fresh draft scheme in accordance with its directions. The publication by notification of the sanction of the final scheme is treated as a declaration duly made under section 6 of the Land Acquisition Act, 1894. If such a scheme is sanctioned by the Government, it shall be deemed to be a final town Planning Scheme as provided in sub-section (4) of section 68 of the Act of which a public notice through the local newspapers is required to be given thereunder by the Planning and Development Authority.
44. As provided in sub-section (5) of section 68 of the Act, the final scheme comes into operation from the date specified in the public notice published under sub-section (4) of section 68 of the Act. It has effect as if it were enacted in the Act by virtue of sub-section (7) of section 68 of the Act. The effect of the final scheme as provided in section 69 of the Act is that on the date the final scheme comes into force all lands required by the Planning and Development Authority, unless otherwise determined in such scheme, vests absolutely in the Planning and Development Authority free from all encumbrances and the person in occupation of such land can summarily be evicted by the Planning Development Authority as provided in sub-section (2) of section 69 of the Act.
45. Sub-section (1) of section 70 of the Act empowers the Planning and Development Authority to decide certain matters in relation to Town Planning Scheme and section 71 provides for an appeal to the Chief Town Planner in regard to certain matters arising from clauses (a), (b), (c),(n) and (o) of sub-section (1) of section 70 of the Act. As regards the matters contained in the remaining clauses, of section 70(1) of the Act, an appeal is provided under section 71 (2) of the Act to a Tribunal constituted under section 72 of the Act.
46. Sub-section (1) of section 81 of the Act provides for variation in the scheme on the ground of error, defect or irregularity or informality in regard to which the draft variation proposed by the Planning and Development Authority has to be sent to the Government through the Chief Town Planner and if it is not substantial the Government has to publish the same in the prescribed manner as provided in section 81 (2) of the Act. Any person effected by this variation is entitled to take objections to it in writing to the Government through the Chief Town Planner with a copy to the Planning and Development Authority as provided under sub-section (5) of section 81 of the Act, within the prescribed period. The Government has to then decide after consultation with the Chief Town Planner and the Planning and Development Authority whether to approve the variation with or without modifications or refuse to make the variation as provided in sub-section (6) of section 81 of the Act.
47. Notwithstanding anything contained in section 81 of the Act, section 82 (1) of the Act provides that a town planning scheme can be varied and revoked at any time by the subsequent scheme made, published and sanctioned in accordance with the provisions of the Act. Section 82(2) of the Act empowers also the Government to revoke the Town Planning Scheme after making such enquiry as it may deem fit and after giving the Planning and Development Authority an opportunity of being heard and after consulting the Chief Town Planner. Section 84 of the Act enables the two or more Planning Development Authorities to constitute a Joint Town Planning Authority with the approval of the Government for preparing a joint Town Planning Scheme in respect of contiguous areas.
48. Chapter-IX deals with the levy, Assessment and Recovery of Development charge. The maximum and minimum development charges and the classification on the basis of which they are to be fixed has to be determined by the rules framed under the Act as provided in section 101 of the Act. Section 100 of the Act enables the Planning and Development Authority to levy a development charge upon the development work or the change of user of the land within the area of its jurisdiction for which its permission is necessary under section 44 of the Act. Such Development charge has however to be levied thereunder with the previous sanction of the Government by issuing a notification in that regard and it has to be within the maximum and minimum development charges fixed under the rules. Section 105 (1) in Chapter-X of the Act provides for a separate fund constituted for the Planning and Development Authority containing the moneys received by the said authority under the various heads shown thereunder. Sub-section (2) of section 105 then provides for the application of the said fund towards the expenses which may incurred by the Planning and Development Authority upon the matters enumerated therein.
49. Section 132 of the Act provides for the control of the Government over the Planning and Development Authority which has to comply with the directions as may be issued by it from time to time for the efficient administration of the Act. Section 138 of the Act empowers the government to supercede the Planning and Development Authority, if in its opinion it commits default in exercise of the power or the performance of the duties imposed upon it under the Act in its place, an Administrator can be appointed by the Government. Section 139 of the Act provides for dissolution of the Planning and Development Authority, where the government is satisfied that the purpose for which the Planning Development Authority, where the Government is satisfied that the purpose for which the Planning Development Authority was established under the Act has been substantially achieved so as to render the continued existence of the Planning and Development Authority unnecessary. Such a Planning and Development Authority stands dissolved with effect from the date as may be specified by the Government in the notification issued to dissolve it.
50. It is in the context of the above provisions and the Scheme of the Act and the Rule framed thereunder that the contentions raised by the parties need to be considered in the instant Writ Petition. Since the legal contentions raise the question whether the Planning and Development Authorities and the inhabitants within their jurisdiction are effected by or are interested in the question of amalgamation of the Planning and Development Authority as provided in sub-section (3) of section 18 of the Act and therefore, whether it is necessary that they should be heard or at least allowed to raise objections to such amalgamation before any action is taken thereunder by the Government under Sub-section (3) of section 18 of the Act, we propose to consider the said question first before actually dealing with the legal contentions raised on behalf of the petitioner involving the said question.
51. The learned Counsel for the petitioner Writ Petition No. 240 of 1991 has urged before us that the petitioner, who was the Chairman of the S.P.D.A. during the relevant time was herself personally affected by the amalgamation of the Planning areas within the jurisdiction of the S.P.D.A. with the planning area of the Planning and Development Authority Penda under section 18(3) of the Act as her tenure of two years was abruptly curtailed thereby as she had lost her office. As such, it is urged that the action in regard to amalgamation of the S.P.D.A. of which she was a Chairman could not have been taken without giving her an opportunity of being heard. It is also urged on behalf of the Petitioner in Writ Petition No. 240 of 1991 that by amalgamation of SPDA with Planning and Development Authority Penda, the SPDA was itself adversely affected and therefore, no action under section 18(3) of the Act for amalgamation should have been taken without issuing notice to the SPDA and without hearing it.
52. As regards the Writ Petition No. 243 of 1991 it is urged on behalf of the petitioner therein that the inhabitants in the Planning areas in question were interested in and some of them were also adversely affected by the amalgamation of the said Planning areas undertaken by the Government under section 18(3) of the Act. In particular, the learned Counsel for the petitioner therein has submitted before us that the SPDA had jurisdiction over large planning areas and had collected funds through development charges from the inhabitants in the said areas who had applied for development on their land or change in user of the land and therefore they should have been heard because the amalgamation of the planning areas within the jurisdiction of the SPDA would involve the application of its funds including the Development charges recovered from them, after amalgamation, upon the planning area which was before amalgamation within the jurisdiction of the Planning and Development Authority, Penda.
53. The learned Advocate General appearing for the State has urged before us that there is amalgamation of Planning areas only under section 18(3) of the Act and therefore no individual can be said to be personally affected by the action taken by the Government under sub-section (3) of section 18 of the Act. He has urged before us that the question of amalgamation of two or more planning areas or sub Division of a Planning area under section 18(3) of the Act is in the realm of the policy decision of the State Government, in regard to which there is no necessity or requirement of compliance with the principles of natural justice. He has further urged that the legislature in its wisdom has made express provisions in the Act about giving an opportunity to the person including the Planning and Development Authority interested in or affected by the action taken by the appropriate authority under the Act and therefore, according to him, the Scheme of the Act itself thus shows that in taking the action of amalgamation of two or more planning areas or of sub-divisions of a planning area since any person including the planning and Development Authority could not be said to be actually affected by or interested in the said action which was a policy decision of the Government., the legislature had advisedly not provided for any opportunity of hearing being given to them or at any rate for inviting their objections and for considering the same.
54. In support of his contention, the learned Counsel for the petitioner has urged that when any area is to be declared as a planning area for the purposes of the Act for the first time, the Government is clearly acting on a clean slate and therefore it is not disputed in this writ petition that there is any question of complying with the principles of natural justice or inviting objections of the public before determining an area to be planning area for the purposes of the Act. However, according to the learned Counsel for the petitioner, the question for giving hearing to the Planning and Development authority or authorities and inviting objections from the public arises at the state of issuing a notification of amalgamation of two planning areas into one or sub division of the planning area into different areas because then the Planning and Development Authorities are constituted and have done some work and are carrying out their activities within the planning areas under their jurisdiction involving also the people is their area or areas particularly when they seek permission for Development or change of user of their lands on payment of Development charge to the Planning and Development Authorities.
55. The question thus is because there is a Planning and Development Authority constituted and because it has some work upon the planning area within its jurisdiction involving the people in that planning area whether it is necessary to observe principles of natural justice by giving an opportunity of being heard to the Planning and Development Authority and the people from the Planning area within its jurisdiction. In considering the above question it is first necessary to emphasise that under sub-section (3) of section 18 of the Act what is contemplated is amalgamation of two or more Planning areas into one Planning area or sub-division of a Planning area into two different Planning areas and not the amalgamation or sub-division of any planning and Development Authorities or Authority as such. What is next necessary to be seen is that the Act is itself applicable to a Planning area as envisaged by sub-section (1) of section 18 of the Act. It is, therefore, clear that the determination of Planning area whether for the first time or later on by amalgamation or sub-division is policy decision of the Government taken with a view to efficient application of the provisions of the Act to such area so as to effectuate its purpose of proper and planned development and use of rural and urban land.
56. The learned Advocate General appearing for the State has urged before us that the Planning and Development Authorities and/or the residents in the planning areas within their jurisdiction are not in any way connected with the policy decision of the Government to determine the planning area for the purposes of the Act although they may be interested in or affected by the decisions under the Act in relation to its working or the funds or property of the Planning and Development Authority. In this regard he has urged that the Act has taken care to enact express provisions for consultation with Board and for inviting objections from the persons who are affected by such matters. He has drawn our attention to section 18(5) of the Act in which according to him after taking the decision under section 18(3) of the Act to amalgamate the planning areas or to sub divide a planning area, when the question comes of framing a scheme for determination or apportionment of the fund, assets and liabilities of the Planning and Development Authority or the Authorities concerned prior consultation with them alongwith the consultation with the Board is provided for. He has also drawn our attention to section 19(2) of the Act in which when any planning area is withdrawn from the operation, of the Act, the Government is required to consult, the Planning and Development Authority concerned along with the Board and the local authority before framing a scheme in relation to the fund, properties and the liabilities of the Planning and Development Authority concerned.
57. The learned Advocate General has then brought to our notice section 81(6) of the Act which has provided consultation with the Planning and Development Authority along with the Chief Town Planner before approving the variation in the Town Planning Scheme proposed on account of error, irregularity or informality in the said scheme as framed. Similarly, he has brought to our notice section 82(2) of the Act which requires the Government to give an opportunity to the Planning and Development Authority of being heard and also to consult the Chief Town Planner before revoking a Town Planning Scheme in force within the jurisdiction of the said Planning and Development Authority. The submission thus is that in matters of fund, property and liabilities of the Planning and Development Authority and in relation to the town Planning Scheme framed by it, the Planning and Development Authority is vitally interested and therefore it is consulted or given an opportunity of being heard in such matters.
58. As regard the question of giving an opportunity of being heard to the public in general, the learned Advocate General has drawn our attention to several provisions of the Act where the legislature has made a provision for inviting objections and/or comments from the public and for consideration of the same and also for modification of the plan or the scheme in the light of the same, if necessary. Section 13(1) of the Act, hereinbefore referred to provides for inviting objections from the public to the regional plan and section 13(2) provides for their consideration by the Board in the light of which the Chief Town Planner can revise the said Plan before submitting it for approval of the Government. The comments from the public are thereafter sent to the Government also which before granting its approval to the regional plan under section 14 of the Act can consider the same and make suitable modifications to the plan, if necessary in the light of the same.
59. As regards the preparation of the map and Register showing present land use, section 27(3) of the Act requires the Planning and Development Authority to invite objections to the map and register for land use prepared by it by giving a public notice for the said purpose. What is important to be seen in that the Town Planning Officer or the committee appointed by the Planning and Development Authority for the purpose has to give reasonable opportunity of being heard to the persons who have sent their objections and to make a report to the Planning and Development Authority which can in the light of the said report, make modifications in the map and the Register. Section 28 of the Act requires the Board to follow the above procedure when the Government directs the Chief Town Planner to prepare the map and register in default of the Planning and Development Authority doing so with in the specified period.
60. Section 35(1) of the Act also requires the Planning and Development Authority to invite by public notice, objections in writing from the public to the Development Plan prepared by it which includes by its definitions both the plans i.e. Outline Development Plan as well as Comprehensive Development Plan. After the objections are received within the specified time, the Planning and Development Authority is required to appoint a Committee for considering the objections from the public as provided in section 35(3) of the Act which Committee then has to give reasonable opportunity of being heard to the persons including the representatives of the State Government Departments or local authorities who have submitted their objections and who have made a request to be heard in person. The Planning and Development Authority can make modifications in the Development Plan in the light of the report of the above committee as provided in section 35(6) of the Act before submitting the Development Plan to the Board and the State Government. The same procedure is required to be followed by the Board, if on failure of the planning and Development Authority to prepare the Development Plan within the specified period, the State Government directs the Chief Town Planner to prepare the Development Plan within the specified period, the State Government directs the Chief Town Planner to prepare the Development Plan as provided in section 35 of the Act. Similarly for making alterations in the Development Plan which has come into operation, section 39(2) requires the procedure under section 34 to 38 to be followed. Even as regard minor changes which are in public interest they are required to be notified to the public as provided in section 39(3) of the Act.
61. Lastly as regards the town planning Scheme required to be prepared by the Planning and Development Authority under section 56 of the Act or in its default by the Officer appointed for the said purpose by the government as provided in section 63 of the Act, section 59 requires the objections to be invited to the Draft Scheme in writing from the persons affected thereby as provided in section 68(1) of the Act and the Planning and Development Authority or the Officer appointed by the Government to prepare the town Planning Scheme in default of the Planning and Development Authority has to consider the said objections in the light of which it is open to them to modify the scheme before submitting it to the Government for its sanction. It is also material to see that a town planning scheme can be withdrawn as provided in section 67 of the Act, if the majority of the owners in that area make a representation to that effect. Section 81(5) of the Act allows the person affected by any proposed variation in the scheme which variation is not substantial as contemplated by section 81(2) of the Act to raise his objections to the same.
62. It appears from the above provisions of the Act that in matters where the Planning and Development Authority is interested or is affected, the legislature has provided consultation with it or has afforded to it an opportunity or being heard. Similarly in matters where any persons are affected the legislature has given them an opportunity to raise objections and an opportunity of being heard in regard to their objections. There is therefore great force in the submission made by the learned Advocate General that the legislative scheme provides an intrinsic evidence that in the matter of amalgamation of two or more planning areas into the planning area or sub division of a planning area into different planning areas under section 18(3) of the Act, the Planning and Development Authorities concerned exercising jurisdiction over the said planning areas and the persons residing in the said planning areas are not affected by such act of amalgamation or sub-division. As already pointed out, the deteringation of a planning area for the purposes of the Act, whether for the first time under section 18(1) of the Act or whether by the process of amalgamation of two or more planning areas into one or by sub division of a planning area into different planning areas under section 18(3) of the Act is a matter of the policy decision of the State Government in that regard, taken purely from the point of view the planned Development of the area in question depending upon the factors such as administrative convenience, size, compactness or geographical integrity of the area or other considerations having bearing on the question of the planned development.
63. In this regard it is difficult to see how the Planning and Development Authorities concerned or the residents in the planning areas or area in question are involved or are affected. As regards the Planning and Development Authority, it is pertinent to see that it is only when the planning area is declared for the purpose of the Act, that the Planning and Development Authority comes into picture as it is thereafter that it is constituted under section 20(1) of the Act for carrying out the planning activities over the planning area or areas within its jurisdiction. Similarly, the residents of the State or any areas in the State can have interest and can have affected by the preparation of plans and schemes for development and the work of development or change of user of their lands in the planning areas or area which are questions not germans to the question of determination of the extent of area which should be declared as a planning area for the purposes of the Act.
64. It is pertinent to see that the Planning has social as well as economic objectives as observed by Lawis Keepal in his book "Principles of Town and Country Planning" which is also clear from the legislative entry No. 20 of List-III (Concurrent List) in the VII Schedule of the Constitution relating to "Economic and Social Planning" under which the Town and Country Planning Acts are enacted by the State legislatures under their concurrent power of legislation. In view of the population explosion and the haphazard growth and development of cities and towns, it became necessary to exercise effective control over the proper utilization of the land within the State. The object of planning over an area or areas is to facilitate proper planning of such area or areas having common physical, social and economic problems so that certain matters such as distribution of population and industries roads and highways, preservation of good agricultural lands, reservation of green belts and areas of natural reserves such as natural scenery, trees, woodlands, lakes, streams, rivers and good land-scapes etc. can be dealt with and planned comprehensively upon the said area or areas. Proper planning thus involves the proper utilisation of the land and the natural resources is the area and to provide proper amenities, services and utilities in that area.
65. It is this planning point of view which is borne in mind when the government determines or alters a planning are for the purpose of the Act. therefore, where the Government finds and considers it expedient that to facilitate proper development and to have effective control over the plans and schemes, it is necessary to amalgamate two or more planning areas so that there can be proper allocation of land for different uses such as, Industrial, Agricultural, residential, forest or for mineral exploitation or there can be provided proper amenities, services and utilities, the Government can exercise the power conferred upon it to amalgamate two or more planning areas. On the other hand, if the government should consider that there should be compact and smaller Planning areas for better execution of the Town Planning Schemes, the power is conferred upon the government to sub divide the existing planning areas into different planning area.
66. The various provisions of the Act already adverted to show that the ultimate authority and responsibility in Planning and Development under the Act is of the State Government as all the Plans whether regional or Development Plan and the Town Planning Scheme, require the approval of the government which can modify the plan or the Scheme. The government has also power to issue directions to the Planning and Development Authority for the efficient administration of the Act. The State Government is aware of the plans and schemes applicable in the planning areas and/or their needs when it considers the question of amalgamation of planning areas or sub-division of a planning areas.
67. However, although consultation with the Planning and Development Authority is not attached to and or the provision for inviting objections and suggestions from the residents of the Planning areas in question is not made under section 18(3) of the Act, the legislature has still borne in mind the said aspect and has provided for a safeguard and the control over the exercise of discretion by the Government under section 18(3) of the Act by providing for prior consultation with the Board which as we shall subsequently show, is not only the comprehensive body of representatives of all interests and experts in Town Planning, but is intimately connected with the work of preparation of development plans and schemes in the Planning Areas and the day to day working of the Planning and Development Authority also as is clear from the provisions of the Act herein before referred to, for which reason it appears that the legislature has in its wisdom chosen to dispense with the requirement of consultation with the Planning and Development Authority and/or the requirement of inviting objections and suggestions from the people in the concerned Planning Areas, apart from the fact that the Planning and Development Authority or the People in the Planning areas are not directly concerned with the question of amalgamation of planning areas or sun-division of a planning area.
68. In appreciating the above submission it must be been that the question where the office of the Planning and Development Authority should be located from the Point of view of the convenience of the people, particularly when the planning area is a large area is a matter for the Planning and Development Authority to consider for its efficient day to day working and in considering the same, it can decide to have more than one office or sub-office for the convenience of the people, if the planning area is a large one. However, the convenience of the people cannot be quated with the administrative convenience from the point of view of the planned development of an area. We cannot, therefore, accept the submission made on behalf of the petitioner in Writ Petition No. 243 of 1991 that by the amalgamation of the Planning Areas within the jurisdiction of the SPDA with the planning area of Planning and Development Authority Penda, since the office is shifted to Penda causing inconvenience to the residents within the jurisdiction of the SPDA, they are affected by the decision of amalgamation of the above planning areas and therefore, they should have been heard.
69. Similarly, there is no force in the submission made on behalf of the petitioner in Writ Petition No. 243 of 1991 that the people residing within the jurisdiction of the SPDA, the planning areas under whose jurisdiction are sought to be amalgamated with the planning area of the Planning and Development Authority Penda are entitled to be heard or at any rate to raise objections before the decision for such amalgamation is taken because they are required to pay development charges for development or change of user of their lands to the Planning and Development Authority within whose jurisdiction their land are situated. it may be seen that the separate fund of the Planning and Development Authority is composed of money received under several heads as shown in section 105 of the Act which includes grants, loans, etc. received from the Government., the Development charges, and the contributions from the local authorities included in the planning areas within the jurisdiction of the Planning and Development Authority. It may further be seen that the said fund is required to be applied towards expenses as shown in section 105 (2) of the Act which relates to the activities which it has to undertake under the Act over the planning areas under its jurisdiction.
70. When there is amalgamation of two or more planning areas the separate fund of the new Planning and Development Area would naturally increase but then the same is spent over a larger planning area also. Conversely when the planning area is sub-divided the separate fund of each of the different planning areas formed by sub-division may decrease. However, this aspect may be a part of a planning perspective where the Government may allocate more or less funds on such planning areas but it cannot be insisted that because the Development charges are paid by the people the funds of the Planning and Development Area must be spent upon the particulars individual or upon particular areas within the jurisdiction of the Planning and Development Authority. It is however, pertinent to see in this regard that since the Planning and Development Authority is concerned with the question of its funds, properties and liabilities, when there is amalgamation of two or more planning areasor sub division of a planning area into different planning areas, care is taken under sub-section (5) of section 18 of the Act to consult the Planning and Development Authorities concerned for proper apportionment of the funds, properties and the liabilities. We cannot therefore held that because development charges for development and charge of use of the land are paid by the people, they should be heard before taking the decision of amalgamation or sub division of planning areas or area.
71. As regards the petitioner in Writ Petition No. 240 of 1991, it is urged that there is a statutory tenure of 2 years provided for Chairman and the members of the Planning and Development Authority under Rule 3(1) of the Goa, Daman and Diu Town and Country Planning (Planning and Development Authority) Rules, 1977 and as per Rule 3(5) thereof, an amount of Rs. 500/- is paid as honorarium to the Chairman whereas under rule 3(6), thereof the members of the Planning and Development Authority are entitled to the Travelling Allowance and Daily Allowance. It is, therefore, submitted that when there is a loss of office to the Chairman and the Members of the Planning and Development Authority by reason of amalgamation of the Planning areas, the petitioner and the members of the Planning and Development Authority are entitled to be heard before any such action of amalgamation is taken under section 18(3) of the Act.
72. Apart from the fact that as already pointed out the question of amalgamation of planning areas or of sub Division of a planning area is a question of policy decision of the Government with which the Planning and Development Authorities are not concerned, merely because such amalgamation or sub-division has caused loss of office to the Chairman and the members of the Planning and Development Authorities concerned; it would not be obligatory upon the Government to follow the principles of natural justice and give an opportunity to the petitioner and other members of the SPDA of being heard in the matter. In appreciating the above submission, it is necessary to see that the office of the Chairman or the Members of Planning and Development Authority is not such an office in which the incumbents can claim any vested interest, only because their terms and conditions are governed by the statutory rules. Although it is true that the Planning and Development Authority is a body Corporate, it has to be seen that it is an instrumentality of the State to discharge its responsibility of town planning which is carried out by decentralising its planning, although as is clear from all the provisions the Act, the ultimate authority in relation thereto vests in the State.
73. Even assuming that there is some right created in the Chairman and in the members of the Planning and Development Authority to hold and occupy their offices, it is not in dispute that the loss of office is not by reason of any punitive action taken against them, for which purpose there is a specific provision enacted in section 138 of the Act under which, although not so provided in express terms, the Chairman and the Members of the Planning and Development Authority can claim an opportunity of being heard on the basis of the principles of natural justice.
74. The learned Counsel for the petitioner has relied heavily upon the judgment of the Full Bench of the Karnataka High Court in the case of H. Puttalppa and others v. State of Karnataka, A.I.R. 1976 Karnataka 148, in support of his submission that in the case of amalgamation also, it is necessary to comply with the principles of natural justice although the same are not specifically provided for in the Statute. The above Judgment of the Full Bench of Karnataka High Court is distinguishable as it was considering the case where there was an amalgamation of co-operative societies, which would have their own separate objects and bye-laws, assets and liabilities by reason of which in the matter of their amalagamation, they were vitally interested and entitled to be heard. It is, therefore, rightly hold that the principles of natural justice cannot be said to be excluded in the matter of their amalgamation.
75. As is clear from section 18(3) of the Act, it is not a case thereunder of amalgamation or sub division of the Planning and Development Authorities or Authority as such, but it is a case of amalgamation or sub-division of the planning areas or area in regard to which the considerations as shown herein before are entirely different with which the Planning and Development Authority is not concerned. However, as regards the question of apportionment of the funds, the properties and the liabilities of the Planning and Development Authorities concerned, due to amalgamation or sub-division of the planning areas or area, the Act has in sun-section (5) of section 18 provided for consultation with the Planning and Development Authorities concerned along with the Board for preparation of a proper Scheme of distribution or apportionment of the funds, the properties and the liabilities of the Planning and Development Authorities concerned.
76. As regards the judgment of the Supreme Court in the case of S.L.Kapoor v. Jagmohan and others, , the question therein was of supersession of a Municipal Committee. It must be seen that a members of Municipal Committee holds an elective office after being elected for the same from his elective constituency for a tenure provided under the Municipal Act and his tenure can come or be brought to an end only in accordance with the provisions of the Act. As regards the question of supersession of the Municipal Committee for any default on its part in conducting the affairs of the Municipal Committee, the action of supersession being prejudicial to the members, it cannot be taken without giving them and opportunity of being heard. In such cases, unless specifically excluded, the principles of natural justice must apply. However, the ratio of the said judgment cannot be called in aid in the facts of the instant caste in view of the reasons discussed is paras 72 and 73 above.
77. In the case of Daman Singh v. State of Punjab, , the validity of the provisions of the Punjab Co-operative Societies Act which authorised compulsory amalgamation of co-operative Societies was challenged on the ground that it was arbitrary and against the principles of natural justice as no opportunity of being heard was provided to the members of the Society before its amalgamation. It was held in the said case that once a person becomes a member of the Co-operative Society, he loses his individuality qua the society and the has no independent right except those given to him by the Statute and the by-laws and therefore, notice to the society must be deemed to be the notice to all its members. the challenge on the footing of the principles of natural justice not being required to be complied with was thus repelled in the said case. As it is a case of amalgamation of Co-operative Societies, where the societies concerned and its members are interested, it is clearly distinguishable like the case before the Full Bench of the Karnataka High Court cited supra.
78. The last case relied upon on behalf of the petitioner and in fact by both the parties is the judgment of the Supreme Court in the case of Neelima Misra v. Harindar Kaur Paintal and others, on the question of the applicability of the principles of natural justice to an administrative decision. It was a service matter relating to appointment of the Universiy teachers under U.P. State Universities Act (1973). The principal question which arose for consideration in the said case was whether the power congferred upon the Chancellor under section 31(8)(a) of the above Act in taking decision upon the disagreement between the selection Committee and the Executive Council on the question of appointment of a Reader in the University was quasi- judicial in nature or was administrative in nature and whether it was necessary for him to give the aggrieved parties an opportunity of being heard before taking any decision in that regard.
79. After examination of the scheme of the relevant provisions of the above Act, the Supreme Court held in the above case that the decision taken by the Chancellor under section 31(8) (a) of the above Act was not quasi-judicial in nature but it was administrative decision. The Supreme Court further held in para 26 of its judgment that in deciding the question about disagreement between the recommendations of the Selection Committee and the decision of the Executive Council in that regard the Chancellor was authorised to take a decision on the basis of available records and therefore the said decision in the exercise of his statutory of his statutory function, did not expressly or impliedly require the application of the principles of natural justice.
80. As regards the question that the administrative decision must conform to the principles of natural justice, the Supreme Court has held in para 22 of the Judgment that an administrative action which involves the Civil consequences must be made consistent with the rules expressed in the latin Maxim audi alteram partem. However, in para 23 of the Judgment upon which heavy reliace is placed by the learned Advocate General, the Supreme Court has pointed out that "the shift now is to a broader notion of "fairness" or "fair procedure" in the administrative action and the duty in that regard is not so much to act judicially as to act fairly," However, it is made clear in the said para 23, that even an administrative decision unless it affects one's personal rights or one's property rights, or the loss of or prejudicially affects something which would juridically be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice. The submission thus made in this behalf by the learned Advocate with the rules of natural justice. The submission thus made in this behalf by the learned Advocate General is that since in amalgamation of two or more Planning areas or sub-division of a planning area under section 18(3) of the Act neither the Planning and Development Authorities concerned nor the people residing within their jurisdiction are prejudicially affected, there is not duty to act fairly or consistent with the rules of natural justice cast upon the government before any decision to amalgamate the planning areas or to sub-divide a planning are under section 18(3) of the Act.
81. The learned Counsel for the petitioner has however relied upon para 29 of the above Judgment of the Supreme Court which is as follows:---
"The Chancellor, however has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the Status. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally or arbitraraily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Act. 14 of the Constitution. As stated in E.P. Royapa v. State of Tamil Nadu, equality and arbitrariness are sworn enemies, one belongs to the rule of law in republic while the other to the whim and caprice of an absolute monarch. The Principle of equality enshrined in Article or quasi-judicial."
82. The above observation of the Supreme Court are clearly made in the context of the challenge to the validity of the action, whether administrative, legislative or quasi judicial nature, under Article 14 of the Constitution we shall therefore consider the question whether the above requirement are satisfied or not a little later when we consider the other challenges of the petitioner in which the said requirements are pressed into service to impugn the notification dated 26-6-1991 of amalgamation of the planning areas in question.
83. It cannot however be disputed that in the case of an administrative Act, which affects the liberty or the property rights of any person and or causes him any civil consequences, the duty is cast upon the Administrative Officer to act in a fair and just manner and thus give the person affected an opportunity of being heard. What the learned Advocate General has urged before us is that if no such consequences result from the administrative action, it is not necessary for the Administrative authority/Officer to give any person an opportunity of being heard as in the case of a policy decision of the Government. As we have pointed out earlier, in the policy decision taken to amalgamate the planning areas, in question neither the Planning and Development Authority nor the general public are interested or affected and therefore no duty is cast upon the Government to comply with the principles of natural justice as urged on behalf of the petitioner. Therefore, the even assuming that the decision to amalgamate the planning areas in question is an administrative decision, the petitioner who is the Chairman of the SPDA or its members and similarly, the general public cannot have any say in the said matter as they are not affected by any action taken under section 18(3) of the Act.
84. as regards the plea of the petitioner that opportunity should have been given to her because of loss office as Chairman, apart from the fact that, she has not vested interest in the office of the Chairman of the SPDA, even assuming that she has some rights created under the Stature, the learned Advocate General had rightly urged before us that the loss of office is an a consequence of the amalgamation of the planning areas, which were within the jurisdiction of the SPDA and therefore, unless it is shown that the said amalgamation is mala fide in sense that it is effected with a view to deprive the petitioner of her office as Chairman of the SPDA, no opportunity is necessary to be give to her of being heard before the action of the amalgamation under section 18(3) of the Act is taken. The learned Advocate General has in this regard rightly drawn analogy of a permanent Government servant who has a guarantee of Article 311(2) of the Constitution in the matter of dismissal, removal from service and reduction in rank. It is well settled by the decision of the Supreme Court that when the post held by the Government Servant is itself abolished and his removal from service is occasioned by such abolition of post unless such abolition of post is not bona fide, the permanent Government servant concerned cannot complain of violation of Article 311(2) of the Constitution which confers a right upon him of being given a reasonable opportunity of being heard before he is removed from service, although the security of his tenure is affected by such abolition of post. See State of Haryana v. Des Raj, 1976 (1) S.L.R. 191 and Judgment of the Supreme Court in the case of K. Rajindran and others v. State of Tamil Nadu & others, 1982 (2) S.L.R. 196.
85. The submission made on behalf of the petitioners in these writ petitions that the Planning and Development Authorities as well as the people residing in the planning areas in question are affected by the amalgamation of the Planning areas in question as per the impugned notification dated 26-6-1991 issued under section 18(3) of the Act cannot thus be accepted and the principles of Audi Alteram Partem are not therefore, necessary to be complied with as urged on behalf of the petitioner in these writ petitions before taking action under section 18 (3) of the Act.
86. We now turn to the most important question raised in this Writ Petition whether the action of the Government under section 18(3) of the Act in amalgamating two or more Planning areas into one planning area or sub dividing a Planning area into different planning areas is legislative or administrative in nature because the submission of the learned Advocate General is that since the power conferred upon the State Government under section 18(3) of the Act is legislative in nature the principles of natural justice are not applicable to the exercise of the said power. The learned Advocate for the petitioner has however urged that the power conferred under section 18(3) of the Act is at any rate a piece of delegated legislation if it is held against that it is not administrative in nature. The Submission therefore, is that the principles of natural justice are applicable to the exercise of the discretionary power by the delegate under section 18(3) of the Act, whether this power thereunder is legislative or administrative in character.
87. It is not in dispute in the instant Writ Petition that the exercise of power by the Government under section 18(1) of the Act amounts to a piece of conditional legislation. It is even otherwise beyond doubt that section 18(1) is a piece of conditional legislation, because the power is given thereunder to apply the provisions of the Act to a Planning area. In order to appreciate the scope and power of the Government under sub-section (1) of section 18 of the Act, it is necessary to bear in mind the definition of the expression "Planning Area" which, as per section 2(24) of the Act means any area declared to be a Planning area under this Act. It is clear from the above definition that an area has to be declared as Planning Area under the Act and it is that power which is conferred upon the Government under section 18(1) of the Act. Perusal of section 18(1) of the Act shows that it is only upon a declaration being made thereunder that any area is a Planning area for the purpose of the Act that the provisions of the Act are applicable to such a Planning area.
87. On the question of conditional legislation as well as Delegated legislation, the classic case is of Queen v. Burch, 5 Ind. Application 178 (P.C.) which is also referred to in (Re. Art. 143 of the Constitution of India and in Delhi Laws Act), case A.I.R. S.C. 332 whose ratio has been summarised in the later decision of the Supreme Court in the case of Raj-Narayan v. Chairman of Patna Administrative Committee, . In a case of conditional legislation, it is well settled that the law itself is laid down by the legislature and the question which is left to the Executive is only to decide when the Act would be brought into force and in which geographical area. As regards the delegated legislation, it is well settled that the legislative policy has to be left to the legislature which cannot abdicate the said function. However, in the light of the legislative policy, or guidance laid down by the legislature, the details to be worked out can be left to the Executive. There is, therefore, no doubt that so far as sub-section (1) of section 18 is concerned, it is a piece of conditional legislation.
88. The real bone of contention, however, between the parties is the power conferred upon the Government under section 18(3) of the Act. According to the learned Counsel for the petitioner, the power conferred upon the Government under section 18(3) of the Act is purely administrative in nature. At any rate according to him, if it is not administrative in nature, it is a piece of delegated legislation, which is liable to be struck down on the ground of excessive delegation as no legislative policy is laid down for the guidance of the delegate under section 18(3) of the Act. On the other hand, it is contended on behalf of the State by the learned Advocate General that section 18(3) of the Act itself is piece of conditional legislation, because, according to him, by the process of either amalgamation or sub division, a new planning area comes into being which has to be declared as a Planning area for the purpose of the Act as provided under section 18(1) of the Act because, according to it, it is only on such declaration that the Act as applicable to such a Planning area.
89. In considering the rival submissions, it has kept in mind that as regards Administrative legislation there is only a hazy border line between the legislation and administration as observed by H.W.R. Wade in his book on "Administrative Law" (VIth Edition) in Chapter 22, at page 847, on delegated legislation. He has also observed that although the old fashioned view looks upon Administrative legislation as a necessary evil, in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. He has further observed (See page 848) that "it is easy to see that legislative power is to lay down the law for people in general, whereas administrative power is the power to lay down the law for the people, or apply the law to them in/some particular situation."
90. The learned Counsel for the petitioner has also brought to our notice the difference between the administrative and legislative Act referred to by de smith in his book on "Judicial Review of Administrative Action" (fourth Edition), page 71. In particular, the following para is brought to our notice by him.
"A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of general rule of conduct with our reference to particular cases, an administrative act cannot be exactly defined, but it includes to adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice. Legal consequences flow from this distinction."
91. We need not detain ourselves on this question because in the judgment in the case of M/s. Shri Sittaram Sugar Co. Ltd. v. Union of India, , the Supreme Court has discussed in paras 32 to 36 the concept of judicial or quasi-judicial decisions, the administrative decisions, and the legislative power and the distinction between them.
92. Turning now to the judgments brought to our notice by the learned Counsel for the parties in this regard, the first case which is referred to is the Judgment of the Supreme Court in the case of Tulsipur Sugar Co. v. Notified Area Committee, Tulsipur, . In the said case, the notification of declaration of Town of Tulsipur as a town area under section 3 of the U.P. Town Areas Act, 1914 was challenged on the ground that no opportunity of being heard was given to the appellant Company in that case whose factory was situated in that area and which was thus adversely affected by the said declaration. It was held in para 8 of the judgment in the said case that a notification issued under section 3 of the aforesaid Act had the effect of making geographical area a town-area for the purposes of the said Act thus making the aforesaid Act applicable to the said area and therefore section 3 of the aforesaid Act was in the nature of a conditional legislation and did not confer an administrative power thereunder. Further, it was held that since the power exercised by the State Government under section 3 of the Act was legislative in character, the principles of natural justice were not applicable to it, which principles are applicable to an administrative or a quasi-judicial power. The Supreme court thus distinguished its earlier cases including the case of A.K. Karaipak v.Union of India, as well as the case of Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 594 in which the principles of natural justice were held applicable to an administrative action unless specifically excluded, if it affected the rights of the persons.
93. The learned Counsel for the petitioner has however relied upon the judgment of the Supreme Court in case of Indian Express Newpapers Private Ltd. v. Union of India & others, in order to show that the Tulsipur Sugar Company case (cited supra) is distinguished therein. He has drawn our attention to paras 69,71 and 76 of the said judgment to show that the principles of natural justice are applicable even to piece of subordinate legislation. In particular, according to him, the Supreme Court has made a distinction in Para 76 of the Judgment between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statue to exercise particular discretionary powers. Further, according to him, in the latter class of cases where discretionary power is conferred upon the statutory authority, even though such per partakes the character of a legislative power, it is subject to the same restrictions as on the Administrative power is, viz. that it must comply with the principles of natural justice and that it can be questioned on the ground of non application of mind, taking irrelevant matters into consideration, failure to take relevant matters into consideration etc.
94. In appreciating the observation of the Supreme Court in the aforesaid para 76 of its judgment, it is necessary to see that the Supreme Court was considering the challenge of the petitioner on the ground of fundamental right under Article 19(1)(a) of the Constitution to the imposition of the import duty upon the news print under the Customs Act, 1962. It is pertinent to see that even the penary law is subject to challenge on the ground of fundamental rights. Even in the same para 76, the Supreme Court itself has made this clear when it has observed that if the subordinate legislation fails to take into account the vital facts which are required to be taken into account either by the Statute or the constitution, the subordinate legislation can be struck down on the ground that it does not conform to the statutory or constitutional requirements or offends Art. 14 and Art. 19(1)(a) of the Constitution. The observations of the Supreme Court in the case of Ku. Nilima Mishra v. Harinder Kaur Paintal, , cited supra also show that the considerations referred to in para 76 of the above Judgment are relevant in the context of the challenge under Article 14 of the Constitution to the State action, whether it is administrative, legislative or quasi-judicial in character.
95. In regard to the observation of the supreme court in the aforesaid para 76 of its judgment, it is necessary to state that the Supreme Court has not referred in express terms to the principles of natural justice while illustrating on what grounds the administrative action can be questioned although it is true that it has observed therein that the discretionary power which is in the nature of subordinate legislation can be challenged on all the grounds on which the administrative action can be questioned. It is however, necessary to read the above observations of the Supreme Court along with is observation in para 79 of its Judgment in which while holding that the claim made on behalf of the government that the impugned notifications are beyond the reach of the administrative law cannot be accepted without qualification, it has observed that all the ground that may be urged against the administrative order may not be available against them. The above observations of the supreme Court would show that the challenge to the discretionary power in the nature of subordinate legislation would depend upon the purpose of the statute, or in particular of such discretionary power conferred thereunder and the vital facts or the requirements including all the principles under Articles 14 and 19 of the Constitution which can be called into play while considering the validity of a particular discretionary power conferred by the Statute.
96. It is, therefore clear that unless Articles 14 or 19 are offended by the exclusion of the principles of natural justice in the impugned provision which is the nature of subordinate legislation conferring discretionary power upon the executive, such a provision in the nature to subordinate legislation cannot be challenged on the ground of breach of the principles of natural justice. In Tulsipur Sugar Co's case cited supra, the State Government has also to exercise its discretion to a certain extent because as provided in the proviso to section 3 of the U.P. Town Area Act, 1914, and agricultural village cannot be declared, or included in a town-area. It is further pertinent to see that Clause (c) of section 3(1) of the above U.P. Act provides for inclusion or exclusion of any area in or from town area as declared or defined thereunder which also requires the exercise of discretion and determination in that regard. Nevertheless section 3 is held to be a piece of conditional legislation in the said case to which the principles of natural justice are held to be not applicable.
97. Heavy, reliance is then placed upon the judgment of the Supreme Court in the case of Baldev Singh v. State of H.P., on behalf of the petitioner to show that the principles of natural justice in the sense that the objections should at least be invited and the representations made by the general public should be considered are attached even to a piece of conditional legation. The facts in the said case were that the State Government was conferred with the power under section 256 of the Himachal Pradesh Municipal Act, 1968 to declare a notified area with respect to which the Municipal fund could be expended upon some or all the matters upon which the Municipal Fund could be expended under section 51 and that the improved arrangements were required within the said area, which nevertheless, it was not expedient to constitute as a Municipality.
98. It is clear from the perusal of the said judgment that the question whether the declaration made under section 256 of the above Act was legislative or administrative in character was not urged in the said case and the said judgment has therefore, proceeded on the footing that it was an administrative decision as is clear from para 5 of the judgment as also from the fact that the judgment of the Supreme Court in Tulsipur Sugar Co's case cited supra in which more or less similar provision was considered as a piece of conditional legislation was not brought to the notice of the Court and was not therefore considered by it. Therefore viewing it as an administrative decision it was held in Baldeo Singh's case that the opportunity of inviting objections from the general public Municipal Act, 1968. the above decision is therefore of no assistance in the instant case where the question whether section 18(3) is a piece of conditional legislation, delegated legislation or confers administration power is raised.
99. We now refer to the later judgment of the Supreme Court in the Case of Sundarjas Kanalal Bhathija v. Collector of Thane, in which the question was about the establishment of a Municipal Corporation i.e. Kalyan Corporation under section 3(3) of the Bombay Provincial Municipal Corporation Act, 1949 by merging the Municipal areas of Kalyan, Ambarnath, Dombivali and Ulhasnagar (later excluded). After referring to its relevant previous decisions in order to consider the question whether the exercise of power by the State government under section 3(3) of the Act is legislative or administrative in nature, including its judgment in the case of Tulsipur Sugar Company Limited cited supra and also the case of Bakldev singh (cited supra), the Supreme Court has held that the exercise of power under section 3(3) of the above Act is legislative in nature to which the principles of natural justice are not applicable. In all these judgments taking a view that the exercise of power is legislative in nature, the passage in these judgment of Mogarry, J. in Bates v. Lord Hailsham of St. Mary Lebone, (1972) 1 WLR, 1373 dealing with the legislative process under section 56 of the Solicitors Act, 1957 has been quoted with approval. See in this regard para 25 of the above judgment in the case of Sundarjas Kanyalal bhathija v Collector of Thane, .
100. Lastly, the learned Counsel for the petitioner has relied upon the judgment of the Supreme court in the case of the Scheduled Caste and Weaker section welfare Association (Regd) and other v. State of Karnataka and others, in order to show that while making a declaration that certain area is a slum area and the further declaration under section 11 declaring whole area as slum clearance area under Karnataka Slum Areas (Improvement and Clearance) Act, 1973 it is necessary to observe the principles of audi altaram partem. Again in the said judgment the question whether the declaration made under section 3(1) or section 11 of the a foresaid Act is legilative or administrative in nature is not canvassed and the case proceeded on the footing that it is administrative in nature. The ratio of the said decision is not therefore of any assistance in the instant case.
101. It would be useful to refer to some of the decisions of the Supreme Court on the question of price fixation under the Price Control Orders issued under section 3 of the Essential Commodities Act, 1955. In Union of India v. Cyamide India Ltd., , the question for consideration was of price fixation under the Drugs (Price Control) Order, 1979. In holding that the price fixation under the said order was a legislative activity, the Supreme Court has observed that when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix a price separately in relation to such individuals it may assume an administrative or quasi-judcial character; otherwise the price fixation is generally a legislative activity.
102. It is then held in para 5 of the judgment in the said case that the legislative action, plenary or subordinate, is not subject to the rules of natural justice. In case where subordinate legislation provides for public notice and a public hearing, it is held that the substantial non-observance of the statutorily prescribed mode of observing the principles of natural justice may invalidate the subordinate legislation but the said right of public notice and public hearing given in certain matters is in the nature of a concession which is not to detract from the character of the activity being legislative and not quasi-judicial. What is important to be seen is that according to the said judgment when no public notice or public hearing is provided in the subordinate legislation no one can insist upon it and it will not be permissible to read natural justice into such legislative activity.
103. It is, however held in para 4 of the judgment in the above case that although the Court is not concerned with the policy of price fixation nor with the rates, the Court has jurisdiction to enuire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price as for instance, when the legislature has laid down the pricing policy and has prescribed the factors which should guide the determination of prices. The enquiry by the Court would, however, be limited to the question whether the said policy and the factors for determination of the prices are present in the mind of the authorities concerned or not and no further.
104. The next case to be noticed in this regard is the case of M/s. Shri Sitaram Sugar Co. Ltd. v. Union of India, . In this case the question was about prices of levy sugar. It is held by the Supreme Court in para 45 of its judgment in the said case that price fixation of levy sugar is in the nature of legislative action even when it is based on objective criteria founded on relevant material. (underlining ours). It is, therefore, held that no rule of natural justice is applicable to any such order. It is further held that it is nevertheless imperative that the action of the authority should be inspired by reason and the Government should not fix any arbitrary price. Further, it also held that it cannot fix prices on extraneous considerations. It appears to us that it is presumably so because of the mandate of Article 14 of the Constitution. It is then held in the said case that grouping of the sugar factories on the basis of the geographical location i.e. geographical zoning is a decision based on exhaustive expert conclusions and is not open to judicial review which is not concerned with matters of economic policy.
105. The last decision to be noticed is the decision of the Supreme Court in the case of (H.S.S.K. Niyami v. Union of India, in the said case, the question of zoning of sugar factories for the fixation of prices of sugar was involved. It is held in the said case that the zoning is an integral part of price fixation of the sugar produced by the factories in the particular zone and therefore, the zoning of sugar factories was legislative in character and the principles of natural justice are not applicable to the legislative act of zoning of sugar factories. It is clear from the above judgments that even though a legislative decision may be based upon the objective criteria founded on relevant material, it still remains a legislative decision and does not become as administrative one. Similarly, if the principal act of price fixation is a legislative act, the act integrally connected therewith viz. of zoning of sugar factories is also a legislative act.
106. In the light of the principles discussed in the above cases, the first question which we have to consider is whether the power conferred upon the Government under section 18(3) of the Act to amalgamate two or more planning areas into one or to sub-divided a planning area into different planning areas is an Administrative or legislative power. As we have already pointed out hereinbefore in paras 64 and 65 above, the decision in regard to determination of a planning area for the purposes of the Act, whether limitial under section 18(1) of the Act or whether by way of amalgamation of two or more planning areas or by way of sub-division of a planning area into different planning areas under section 18(3) of the Act is a policy decision taken by the Government purely from the point of view of proper and planned development of the areas or area in the State with proper utilisation of the available land for various purposes shown in the contents of a Development Plan in sections 30 and 32 of the Act and also for providing adequate amenities, services and utilities in the said areas or area. It is true that the line between legislative and Administrative is very thin and is vanishing and it is a difficult task to determine whether process is legislative or administrative as observed in para 7 of the Judgment of the Supreme Court in Union of India v. Cynamide India Ltd., . However, applying the usual test referred to also in para 79 of the above Judgment in Cynamide India Limited that the legislation is the process of formulating and promulgating the general rule of conduct without reference to particular cases or individuals as against the administrative process which concerns itself with doing particular acts, of issuing particular orders or of making decisions by applying the general rules of conduct to particular cases the policy decision of the Government under section 18(3) of the Act is legislative in nature as it lays down a general rule of conduct without reference to particular cases.
107. The next question to be determined is whether sub-section (3) of section 18 of the Act is piece of conditional legislation or delegated legislation. Although we shall presently show that even assuming that section 18(3) of the Act is a piece of delegated legislation, it satisfies the test of legislative policy and guidance being laid down by the legislature for the exercise of the power by the delegate, in our view section 18(3) enacts a piece of conditional legislation. In this regard it must first be seen that even para 76 of the Judgment of the Supreme Court in Indian Express Newspaper case cited supra upon which heavy reliance is placed on behalf of the petitioner shows that the investment of a discretionary power upon the delegate can amount to a piece of conditional legislation although the same may be subject to challenge on some of the ground on which the administrative action can be questioned.
108. In our view, in determining the question whether section 18(3) of the Act enacts a piece of conditional legislation or not, the criteria which we can usefully adopt is whether, after the determination is made under sub-section (3) of section 18 of the Act an action under section 18(1) of the Act would be necessary to make applicable the provisions of the Act to the area formed by amalgamation of the two or more Planning areas or to different areas formed by sub-division of a planning area. According to the learned Advocate General appearing for the State since by the process of amalgamation or sub-division, a new or different Planning areas or area come into being by extinguishing the existing planning areas or area, a declaration under section 18(1) of the Act would be necessary for making the provisions of the Act applicable to the new or different planning area or areas. On the other hand, the submission on behalf of the petitioner is that since the Act is already made applicable to the Planning areas which are sought to be amalgamated or planning area which is sough to be sub-divided, no declaration under section 18(1) of the Act is necessary for application of the provisions of the Act to the new Planning area formed by the process of amalgamation of two or more planning areas or the different Planning areas formed by sub-division of a Planning area.
109. The above submission on behalf of the petitioner is without prejudice to the basic contention raised on her behalf that section 18(3) of the Act is applicable to the planning areas which are not declared as such under section 18(3) of the Act. The said contention need not detain us may more because the expression "planning area" used in section 18(3) or for that matter in any provision of the Act means, as per its definition under section 2(24) of the Act. In other words, an area which is not declared to be a Planning Area would not be a planning area within the meaning of section 18(3) of the Act. sub-section (4) and sub-section (5) of the Act which apply on amalgamation or sub-Division of Planning areas or area under section 18(3) of the Act, also support the above view. In particular, Sub-section (5) of section 18 of the Act which provides for apportionment of the funds, properties and liabilities of the Planning and Development Authorities concerned clearly postulates planning areas declared under the Act for which the Planning and Development Authorities are constituted and are carrying on their activities under the Act.
110. Proceeding thus to consider the above rival submissions on the question whether section 18(3) enacts a piece of conditional legislation, it is necessary to scrutinise sub-section (3) of section 18 of the Act closely. the said sub-section (3) deals with (i) amalgamation of two or more Planning areas into one Planning area (ii) Sub-division of Planning area into different planning areas and (iii) inclusion of sub-divided area or areas in any other Planning area. It is clear that a by the process of amalgamation one Planning area out of two or more planning areas is formed. Similarly, out of one Planning area by sub-division, different planing Ares are formed. It is pertinent to see that as regards sub-division, the expression use by the legislature is "different planning areas."
111. Now when by the process of amalgamation of two or more planning areas, one planning area is formed or by the process of sub-division of a Planning area, different planning areas are formed, the question is whether they are convered by the definition of the expression "Planning Area" under section 2(24) of the Act. The said definition of the Planning Area requires a declaration under the Act for any area to be a Planning Area, which declaration is provided for in section 18(1) of the Act. The question which needs consideration is whether the planning areas or area which existed prior to their amalgamation or sub-division as the case maybe would stand extinguished on their amalgamation or sub-division, so that for the "area" thus formed, a declaration under section 18(1) of the Act would be necessary to be a "planning area". Otherwise, it is possible to urge that since the Act has been already made applicable to the Planning areas or area which are sought to be amalgamated or sub-divided no declaration under section 18(1) of the Act is necessary in which case it is possible to further urge that since further action under section 18(1) of the Act is not necessary, section 18(3) of the Act on its own enacts a piece of delegated legislation and not conditional legislation.
112. Turning to the meaning of the expression," amalgamation" and "sub division" or "sub- divide" Black's Law Dictionary VIth Edition gives the meaning of the expressions "amalgamation", "sub-divide" and "sub-division" as follows:-
"Amalgamation" : Union of different races or diverse elements, societies, unions associations or corporations, so as to form a homogenous whole or new body; interfusion, intermarriage; consolidation; merger, colescence; as the amalgamation of stock."
Sub-divide: To divide a part into smaller parts, to separte into smaller divisions. As, where an estate is to taken by some of the heirs per stripesk, it is divided and sub divided according to the number of takers in the nearest degree and those in the more remote degree respectively.
Sub-division : Division into smaller parts of the same thing or subject-matter. The division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of land for sale or development.
113. In words and phrases, legally defined (Second Edition) by John B. Saunders Volume-I the expression "amalgamation" is defined with reference to the companies by reference to the case of Re Walker's Settlement, royal Exchange Assurance Corporation v. Walkar, (1935) Ch. 567 C.A. per Romer L.J. at p.583 and a passage from the said case is reproduced which is as follows:-
"I find some definition, if it be a definition, of 'amalgamation' in Buckley on the Companies Acts (13th Edn. p. 586). It is a definition which so far as it is a definition, should like to adopt as my own; it is there stated as follows: The word" amalgamation" has no definite legal meaning. it contemplates a state of things under which two companies are so joined as to form a third entity, or one company is absorbed into and belended with another Company".....
114. It appears to us from the above definitions that what comes into being after amalgamation or sub-division is a new entity having a new identity which meaning is consistent with the scheme of section 18 of the Act because the Act is applicable to the planning area only which has as per its definition a definite identity for the purposes of the Act, and has to be declared as such under section 18(1) of the Act. Thus, if by reason of amalgamation of sub-division a new or the third legal entity comes into being, it would mean that old entities by reason of their amalgamation of sub-division have lost their old identities and would thus stand extinguished. In this view of the matter, the Planning area which are amalgamated in the instant case would lose their identities and the new which is formed by the process of amalgamation would therefore require a declaration under section 18(1) of the Act to make the provisions of the Act applicable to it. This view is also supported by the Scheme of Section 20(1) of the Act, according to which, unless there is a declaration of the Planning area which is under section 18(1) of the Act only, a new Planning and Development Authority for the new planning area cannot be constituted.
115. In this view of the matter, the submission made on behalf of the petitioner that once there is a declaration by the State Government under section 18(1) of the Act, its power is exhausted and it cannot withdraw the application of the Act to the planning areas or area which are sought to be amalgamated or sub-divided does not survive for consideration because as already pointed out, once the Planning areas lose their existence, or identities by reason of amalgamation or sub-division and what comes into being is a new area, the Government can and has to exercise its power to make the provisions of the Act applicable to such a new area formed by amalgamatioon or sub-division by making a declaration under section 18(1) of the Act to that effect.
116. If the provisions of sections 18(1) and 18(3) of the Act are therefore rend together, it follows that the Government has to take a decision what geographical area should be a planning area for the purposes of the Act, so as to apply the provisions of the Act to the said planning area. When section 18(1) of the Act in which also such a decisions is implicit is a piece of conditional legislation, only because such a decision is taken by the process of amalgmation or sub-division of the existing planning areas or area it would not mean that it would not be piece of conditional legislation.
117. It is held by the Supreme Court in the case of Province of Bombay v. Kushaldas Advani, , that when the executive authority is required to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are like matters of administrative character. The question raised in the said case was whether an order for requisitioning of a land under section 3 of the Bombay Land Requisition Ordinance, 1947 was amenable to a Writ of Certiorari because although the act of requisitioning of the land was an administrative act, the determination of the question whether the requisitioning was for a public purpose as a preliminary step to the issuance of an order for requisition of the land required the government to act quasi judicially. It is upon this question that the Supreme Court has taken the above view that both the determinations are alike administrative in character. Drawing the anology from the above reasoning, if the declaration made by the Government about a planning area in section 18(1) of the Act is a piece of conditional legislation then the determination made about the area to be a planning area, whether initially or by the process of amalgamation or sub-division of planning areas or areas under section 18(3) of the Act as a preliminary step for making the declaration under section 18(1) of the Act is also piece of conditional legislation. The submission made on behalf of the State by the learned Advocate General is therefore, well founded and it has to be held that the determination under sub-section (3) of section 18 of the Act is a piece of conditional legislation.
118. Even assuming that what is enacted under sub-section (3) of section 18 of the Act is a piece of delegated legislation, in our view, there is ample legislative policy and guidance in the Act for the exercise of the power by the delegate under sub-section (3) of section 18 of the Act. As regards the law on delegated legislation it is well settled from the various decisions of the Supreme Court right from its decision in the Re Delhi Laws Act case A.I.R. 1951 S.C. 332 whose ration has been summarised in Raj Narayan v. Chairman Patha Administrative Committee, . In fact in the recent decision of the Supreme Court in the case of Ramesh Birch Union of India, , in which after considering the views in the various in the various judgments in the Delhi Laws Act case cited supra and referring to all other previous judgments of the Supreme Court on the question of delegated legislation including the judgment in the case of Hamdard Dawakhana v. Union of India, relied upon on behalf of the petitioner and the case of Edward Mills Ltd.v. State of Ajmer, relied upon on behalf of the State, the Supreme Court has adopted the "Policy and guideline theory" in judging the delegation of power to the executive to extend the provisions of any Act to the Union territory of Chandigarh under section 87 of the Punjab Reorganisation Act, 1966.
119. It is thus well settled that, if the legislature has itself laid down legislative policy and guidance for the delegate and left only the question of details to be worked out by him, it cannot be said that the legislature has abdicated its legislative function and the impugned enactment cannot be held to be invalid on the ground of excessive delegation of legislative power to the executive. It is further well settled that for finding out whether there is a legislative policy and guidance laid down by the legislature for the exercise of the power by delegate or not; it is not necessary that the said policy must appear in the provision under which the power is delegated by the legislature. The Preamble, the Objects, and Reasons and the provisions of the Act can be looked into to determine whether there is legislative policy or guidance discernible from the same. All the above factors, when considered, lay down ample legislative policy and guidance for the exercise of power by the executive under section 18(3) of the Act.
120. The preamble of the Act shows that it is enacted to provide for planning the development and use of rural and urban land and for purposes connected therewith. the objects and reasons of the Act throw more light. They show that the Act is passed to create conditions for planning and replanning or urban and rural areas, providing full civic and social amenities for the people and also to stop uncontrolled development and land due to land speculation and proffering in lands and to ensure that Town Planning Schemes are made in a proper manner.
121. As regard the provisions of the Act, we have pointed out that in the matter of preparation of the regional plan by the Chief Town Planner and development Plan and the Town Planning and Development Authority, ultimately the matter goes to the State Government for its approval and the State Government is also entitled to make modifications in the said Plans or schemes. The State Government is thus the ultimate authority in this regard. Perusal of the provisions of the Act would show that the State government is intimately connected with the working of the Act and the activities carried out by the Planning and Development Authorities within the jurisdiction of their planning areas and therefore, if it appears to the Government that the Planning areas which are originally created are inappropriate from the point of view of planning, which, as we have hereinbefore discussed, social and economic objective, it can take action under sub-section (3) of section 18 of the Act to restructure the Planning areas by adopting the process of amalgamation or of sub-division of the existing planning area or areas as it may think proper.
122. Moreover, the Government is required to consult under sub-section (3) of section 18 of the Act the Board which is a representative body of all the concerned departments of the State and the Central Government as well as experts on Town Planning and other relevant matters. Perusal of the provisions of the Act would show that the Board is associated with the activities of the Planning and Development Authorities and in the preparation of Development Plans and schemes. It is also thus intimately connected with the working of the Act.
123. It is not therefore possible for us to accept the submission on behalf of the petitioner that there is no legislative policy and guidance laid down by the legislature for the exercise of the power by the delegate under section 18(3) of the Act. Hence the contention that section 18(3) of the Act bad and is liable to be struck down on the ground of excessive delegation cannot be accepted.
124. As regards the contention on behalf of the petitioner that section 18(3) of the Act confers essentially an administrative power upon the Government which stands rejected since we have held that the power conferred there under is legislative in nature, even assuming that the said power is administrative in nature, we have already pointed out that there is no question of any compliance with the principles of natural justice either by naturally giving opportunity of being heard to any person including the Planning and Development Authority or by inviting objections thereunder, because as shown by us no body is affected by amalgamation of two or more planning areas, or by sub-division of any Planning area as such for which therefore, as rightly urged by the learned Advocate General, the requirement of inviting objections etc. is not attached to the said provisions. We have already shown that the legislature is itself conscious of such requirement where ever necessary as it has provided for such requirements in matters where either the general public or the Planning and Development authorise are affected or are interested. When the legislature has thought it fit not to attach such requirements in section 18(3) of the Act to which only the requirement of consultation with Board is attached, it means that the legislature does not consider that the general public or the Planning and Development Authority are interested in or are affected by the question of amalgamation of planning areas or sub-division of a planning area under section 18(3) of the Act or that their interest, if any can be safeguarded by the Board with which the prior consultation is provided for before taking action section 18(3) of the Act.
125. We also find that there is great force in the submission on behalf of the State that when a policy decision is taken, the requirement of a fair hearing is not necessary, unless the right of somebody is affected or it causes some civil or evil consequences to him. It is thus not necessary that in every administrative action, the principles of natural justice have to be complied with. A policy decision is taken by the Government is not open to judicial review unless it is mala fide, arbitrary or is bereft of any discernible principle. See the case of The Director, Lift Irrigation Corporation Ltd. and others v. Pravat Kiran Mohanty and others, . Incidental, it may be seen that the said case was a case of amalgamation of two service cadres in the Government service in which the Government servants belonging to one cadre had lost some placed in the seniority list by reason of the amalgamation of the two cadres. The policy decision of the Government to amalgamate two planning areas into one under section (3) of the Act even assuming that it may be administrative in nature, cannot be challenged on the ground that the principles of natural justice are not complied with before taking such decision.
126. The next question to be considered is whether the policy decision taken by the Government under section 18(3) of the Act is mala-fide or is arbitrary or violative of Article 14 of the Constitution. As regard the challenge under Article 14 of the Constitution, the challenge is based on the ground that the provisions of section 18(3) are unreasonable or at any rate the action taken thereunder of amalgamation is unreasonable and suffers from non-application of mind and want of any material for taking such decision. As regards the challenge to the validity of section 18(3) of the Act, the concept of unreasonableness has been considered by the Supreme Court by reference to the relevant passage from the Administrative Law of H.W.R. Wade, in its judgment in the case of G.B. Mahajan & others. v. The Jalgon Municipal Council & others, .
127. The following passage is quoted with approval in para 37 of the above judgment from the Administrative Law of H.W.R. Wade, 6th Edn. P. 407.
"The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bonds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended. Decisions which are extravagant or capricious cannot be legitimate. but if the decision is within the confines of reasonableness, it is not part of the Court's funcation to look further into its merits. With the question whether a particular policy is wise or foolish the Court is not concerned; it can only interfere it to pursue it is beyond the powers of the authority."
128. It is observed in para 39 of the above Judgment that the operation of the test "Resonableness" as test of validity must be kept distinguished from the administrative law test of reasonableness as the touch-stone of validity of the impugned Resolutions in the said case was different from the test of the 'reasonable man' familiar to the law of torts, whom English Law figuratively identifies as the "man on the clapham omnibus."
129. In application of the criteria of "reasonableness" to sub-section (3) of section 18 of the Act, it is material to see that as already pointed out above, there is sufficient guidance in the Act for the exercise of the said power and further more what is important to be seen is that the State Government is required to consult the Board which is an all representative and an expert body fully conversant with the working of the Act and in particular the working of the Planning and Development Authorities in their planning areas which, as rightly submitted in the return filed on behalf of the State, controls the discretion of the Government under section 18(3) of the Act. The provisions of section 18(3) of the Act cannot therefore be said to be conferring unbriddled power upon the State Government. Moreover, as it has been held in many Judgments of the Supreme Court, particularly where there are two procedures provided, the discretionary powers conferred upon the State or the highest authority has been held to be a guarantee that it would be exercised, fairly and with responsibility. See the following cases:
, C.B. Boarding and Lodging v. State of Mysore, para 8 , S.T. Commr. M.P. v. Radhakrishna, Para 15 , Rajan v. Mh A and Development Authority, para-8.
In these cases, it has been held that although the provision conferring discretionary power is not liable to be struck down as violative of Article 14 of the Constitution, in appropriate case the action taken thereunder can be struck can struck down as violative of Article 14 of the Constitution.
130. As against these judgments, the learned Counsel for the petitioner has drawn our attention to the Judgment of Sawant, J., in the latest case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, in support of his submission that the power being conferred upon the highest authority cannot save the vires of a discretionary power which confers unbriddled discretionary power upon such authority. The observation of Sawant, J., in our view, must be understood in the context of the challenge under Article 14 to a service rule framed by the Delhi Transport Corporation relating to termination of services of the permanent employees without assigning any reasons. It is necessary to see that the discretionary power conferred under the above service rule is with reference to the particular persons viz. the employee in the transport undertaking where in the context of the employer employee relationship the prejudices of an employer, howsoever higher the authority he may be, can cause harm and prejudice to the security of tenure of permanent employee by the abuse of the discretionary power. The above judgment therefore cannot affect the authority of the judgment cited supra saving validity of the provisions conferring discretionary power on the basis of the highest authority theory.
131. At any rate, in para 225 of this Judgment in the above case, Sawant, J., has distinguished the judgment of the Supreme Court in the case of Ramkrishna Dalmiyav v. S.R. Tendolkar, , on the ground that there is sufficient guidance for the exercise of power by the Government under section 3 of the Commission of Enquiries Act, 1952. In the instant case we have already shown that there is sufficient guidance for the exercise of the power by the executive under section 18(3) of the Act. Further, it is pertinent to see that the power conferred under section 18(3) of the Act is to take a policy decision by which no particular individuals as such are affected. Section 18(3) of the Act is not therefore vulnerable under Article 14 of the Constitution.
132. As regards the action taken of amlgamation under section 18(3) of the Act, the first question to be considered is whether any principle is discernible in taking such a policy decision and whether there was some material before the Government to take such a decision. It is already made clear that the extent and scope of such a challenge is very limited. See Judgment of Chinnappa Reddy J., on Cynamide Company v. Union of India's case, and therefore the adequacy or otherwise of the material before the Government cannot be a ground for challenging its policy decision. In this regard, the learned Advocate General has produced the file of the Government before us. It was also shown to the learned Counsel for the petitioner. Perusal of the copy of the decision taken by the Chief Minister on 28-3-1991 shows that the Chief Minister earlier proposed that the Panji Planning area should be merged with Ponda Planning area. However, according to him as there was now thinking of having a Coastal Development Authority, it was more appropriate and advisable to merge the Panji Planning area with the Mormugao Planning area. As regards the Margao Planning Area and Ponda Planning Area, the view was that it would be administratively prudent and convenient from the planning point of view to amalgamate Ponda Planning area and the areas falling within the jurisdiction of SPDA.
133. It thus appears that the Ponda Planning Area and the areas falling within the jurisdiction of the S.P.D.A. were proposed to be amalgamated, because administratively it was prudent and convenient from the planning point of view to do so. It must be seen that the concept of Planning is a technical concept to which we have made reference herein before and several aspects having bearing on the question of social and economic objectives of planning area taken into consideration besides the administrative convenience. It cannot be said that the above proposal made from the point of view of Planning inherinetly suffers from non-application of mind or from lack of any material in making such a proposal because we have already pointed out that the State Government which is the ultimate authority in Planning under the Act is fully conversant with the working of the Act as it is the authority to approve the plans and schemes finally before they are effective and can itself make suitable modifications in the Development plans and schemes which would mean that all the necessary date or material is available with the Government when it initiates the proposal for amlagamation of the two Planning areas under section 18(3) of the Act. There is no reason therefore to hold that the proposal of amalgamation in the instant case suffers from non application of mind or lack of any material to make the said proposal.
134. As regards the challenge to the proposed action on the ground of arbitrariness, the submission is that as the planning area formed by amalgamation of the Planning areas under the jurisdiction of the SPDA with Planning area of Planning and Development Authority Ponda would be a large area and as the office of the new Planning and Development Authority would be situated at Ponda it would cause inconvenience and hardship to the inhabitants within the jurisdiction of the SPDA to go to Ponda for their work. In our view, the policy decision does not become arbitrary because the Planning area constituted is large area, because, if necessary the Planning and Development Authority can have more than one administrative office for the convenience of the people. It is however, material to recollect that before Ponda Planning area was separated in April/May 1990, it was within the jurisdiction of the SPDA which position is again restored by the impugned amalgamation in the instant case except that in the present amalgamation of the same planning areas the name of the Planning and Development Authority has changed and probably its office would be situated at Ponda. Moreover, the convenience of the people is not the same thing as. " administrative convenience or prudence from the point of view of Planning" on the basis of which the policy decision is taken by the Government under section 18(3) of the Act to amalgamate the Planning area of Ponda and the areas falling within the jurisdiction of the SPDA. It cannot therefore, be said that the above policy decision of the Government suffers from any infirmities and is liable to struck down under Article 14 of the Constitution.
135. It cannot also be said that there is no discernible policy revealed in the proposal of the Government to amalgamate the Planning areas in question which is made because it was found administratively prudent and convenient from the planning point of view that the planning areas in question should be amalgamed. Moreover, it may be seen that there cannot be any question of dislocating of work in these planning areas because admittedly uptil now, no development plans are finally prepared in these planning areas and as regards the work which might have been done in these planning areas, the same can be taken care of admittedly by issuing appropriate directions under sub-section (4) of section 18 of the Act. As regards the funds, the properties and the liabilities of the Planning and Development Authorities concerned the said question can be settled under sub-section (5) of section 18 of the Act., in regard to which apart from the Board, the planning and Development Authorities concerned are also consulted. We cannot, therefore accept the submission made on behalf of the petitioner that either section 18(3) of the Act or the Notification issued thereunder amalgamating the planning areas in question is violative of Article 14 of the Constitution.
136. As regards Mala fides, the challenge is two-fold, viz. actual and legal mala fides. As regards the actual mala fides, the challenge is only in Writ Petition No. 243 of 1991. In para 7 it is alleged that the new Planning and Development authority is sought to be created because it will have its Shri Ashok Krushna Naik, who is widely reported to be a business associate of the respondent No. 3 i.e. the Chief Minister. The law in regard to challenge on the ground of mala fides is well settled. In the case of E.P. Royappa v. State of Tamil Nadu's case, , the Supreme Court has observed that it is easy to make the allegations of mala fides, but it is difficult to prove them. Recently also in the case of State of Bihar and another v. Shri P.P. Sharma and another, , the principles as regards the actual and legal mala fides are considered in paras 51 to 57 and para 60 of the Judgment respectively.
137. The main plank of the submission of the learned Counsel for the petitioner in the above Writ Petition No. 243 of 1991, is that the allegations of mala fides alleged in para 7 of the petitioner are not denied by the respondents concerned. The learned Advocate General appearing for the State has rightly pointed out that the allegations made in para 7 of the petition are only hear say and there is no proper affidavit of the petitioner disclosing the source of his information in that regard. Therefore, according to the learned Advocate General, it was not necessary to file any affidavit to counter the same. The above submission made by him is well founded and it has to be held that no case of actual mala fides is made out by the petitioner upon whom rested the burden of proof to prove his allegations of mala fides. The challenge to the notification under section 18(3) of the Act on the ground of actual mala fides therefore deserves to be rejected.
138. As regards the question of legal mala fides, the submission is that there is colourable exercise of the power of amalgamation under section 18(3) of the Act in the instant case because it is exercised only with a view to oust the petitioner and other members of the SPDA. Except the allegation that the object is to oust the Chairman and the members of the SPDA, no other material is placed on record to support the same. That apart, if there is a valid reason for taking action of amalgamation under section 18(3) of the Act, it cannot be said that the said action is taken under the colourable exercise of the said power to oust the Chairman and the members of the SPDA. As we have already pointed out above, the Government has taken a policy decision to merge Panji Planning area with the Mermugoa Planning Area to have coastal Planning Authority and to merge Ponda Planning Area with the Planning areas under the jurisdiction of the SPDA. It is further clear that the decision to amalgamate Ponda Planning area with the areas under the SPDA is taken on the ground of administrative prudence and convenience from the point of view of planning. If these reasons are not shown by the respondents, to be non-existent or false, it cannot be said that there is colourable exercise of the power with a view to oust the petitioner and the members of the SPDA.
139. Another ground raised by the petitioner is that there is haste made in taking a decision and isssuing orders under section 18(3) of the Act and also under section 20 of the Act for constitution of a new Planning and Development Authority without following the proper procedure. In our view even assuming that there is some haste shown by the Government, it would not follow that the action taken by the Government suffers from legal mala fides or actual mala fides. Similarly, the other ground raised in Writ Petition No. 243 of 1991 on legal mala fides is that the action taken by the Government is in violation of the policy of decentralisation in Planning is also not tenable because the size or extent of the Planning area over which the Planning and Development Authority upon whom the powers of preparation of plans and schemes are conferred is left to the discretion of the Governments under sections 18(1) and 18(3) of the Act and the Government is guided in that regard by the considerations of proper planning and development and other objectives which have to be achieved under the Act.
140. We shall now turn to the most important contention raised in these Writ Petitions viz. whether there is effective and meaningful consultation with the Board within the meaning of section 18(3) of the Act. The learned Counsel appearing for the petitioner has urged before us that the requirement of consultation with the Board under section 18(3) of the Act is mandatory and therefore, the said requirement has to be strictly complied with. On the other hand, the learned Advocate General appearing for the State has urged before us that the said requirement is only directory and non compliance with the same cannot render the decision of the Government under section 18(3) of the Act invalid. The learned Counsel for the petitioner has further urged before us that even assuming that the consultation with the Board under section 18(3) of the Act is directory, there has to be a substantial compliance with the said requirement which is not done in the instant case.
141. In support of his submission, that the requirement of consultation under section 18(3) of the Act is mandatory, the learned Counsel for the petitioner has relied upon the following decisions.
1. Agricultural Produce Market Committee. Dharni and others v. District Deputy Registar, Co. operative Societies, 1986 Mh. L.J. 374.
2. Suresh v. State of Maharashtra, .
3. Naraindas v. State of M.P., .
4. Supreme Court Employees welfare Association v. Union of India, .
142. The learned Advocate General, appearing for the State has brought to our notice, the following judgments on the question as to how a provision should be considered as mandatory or directory.
1. State of U.P. v. Manbodhan Lal, .
2. K. Narasimhiah v. Singri Gowda, A.I.R. 1966 S.C. 33 Para 10 and 17.
3. Collector of Manghyr and others v. Keshav Prasad Goenka and others, .
4. State of Punjab v. Satya Pal, .
5. Ajit Singh v. State of Punjab, .
6. Sharif-ud-Din v. Abdual Gani Loane, .
It is however well settled on the basis of the above judgments and the learned Advocate General also does not dispute that even in case of a directory provision, substantial compliance with the said provision is expected.
143. As regards the question of effective and meaningful consultation, the two conditions which are laid down in the Judgment of this Court in the case of Suresh v. State of Maharashtra (Bombay Cases Reporter, 1978 (3), 211) are:
1. Sufficient information or in other words all relevant material must be supplied to the person to be consulted to enable him to tender advice, inviting his attention to the points on which the advice is sought. Indication how the authority seeking advice views the matter.
2. Sufficient opportunity must be given to such person to tender that advice.
144. Suffice it to refer to the last of the decisions of the Supreme Court relied upon on behalf of the respondents i.e. Ajit Singh v. State of Punjab, in which the rule of interpreration on the question as to where her a particular provision in mandatory or directory is extracted in para 8(P.499) from the previous Judgment of the Supreme Court in State of U. P. v. Baburam Upadhaya, , which is also reproduced below:
"When a statute uses the word "shall" prima facie, it is mandatory but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the Statute. For ascertaining the real intention of the legislature, the Court may consider inter-alia, the nature and the design of the Statute and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby by the necessity of complying with the provisions in question is avoided, the circumstance, namely, that statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom and above all, whether the object of the Legislation will be defeated or furthered."
145. It is, therefore, clear that in order to ascertain whether a provision is mandatory or directory, it is necessary to see the setting in which it is placed, the purpose underlying the provision and the object sought to be achieved by it. If we examine the provisions of the Act, they show the role assigned to the Board in the working of the Act. The learned Advocate General has urged before us that so far as the Government is concerned, the function of the Board is only advisory as provided in section 8 of the Act and therefore, consultation required to be made should be construed merely as directory. He has brought to our notice the various provisions of the Act adverted to before, where the ultimate authority in finalisation of the Development Plans and Schemes prepared by the Planning and Development Authorities which are concerned with the working of the Act and the Planning within their areas is upon the State Government which can even make modifications in the development Plans and schemes prepared by the Planning and Development Authorities. The submission is that since the Government is the ultimate and final authority under Act, which is connected with the working of the Act also the requirement of consultation with the Board should be viewed as directory.
146. On the other hand, it is urged on behalf of the petitioner that according to the phraseology used under section 18(3) of the Act, viz. "after consultation with the Board", the consultation with the Board contemplated thereunder is prior consultation and further that if the provision is legislative in nature its requirement of prior consultation should be construed strictly. He has further urged before us that the Board is an all representative body which includes experts in Town and Country Planning and other related matters and according to the functions conferred upon the Board under the Act, the Board is fully associated with the activities of a Planning and Development Authority including the question of preparation of the Development Plan and Town Scheme to be prepared by them.
147. To examine the rival submissions, it is necessary to see the setting in which section 18(3) of the Act is placed, the purpose underlying it, and the object sought to be achieved by it. As it is clear, section 18(3) of the Act occurs in Chapter IV relating to declaration of planning areas and constitution of Planning and Development Authorities. It is further clear from section 18(1) of the Act that the Act is applicable not generally to all the areas within the State but to the areas which are declared by the Government as planning areas for the purposes of the Act. As we have pointed out earlier, the purpose underlying section 18(3) of the Act and the object sought to be achieved by it is to empower the Government to create a proper planning area from the point of views of the efficient planning and development of the said area by adopting the process of amalgamation of the two or more planning areas into one or subdivision of a planning area into different planning areas in the light of its experience of the working of the Act in the said areas which may show that the planning area or areas initially created by it for the purpose of the Act under section 18(1) were not proper planning areas to subserve the purposes of the Act in relation to the planning and Development of the said area or areas.
148. It is next necessary to see the role and importance attached to the Board in achieving the above object of section 18(3) of the Act. What we need to consider in this regard is the constitution of the Board, its nature and the functions assigned to it under the Act. We shall first turn to the constitution of the Board under section 4(2) of the Act, which would show that it consists of the members from all the relevant Departments of the State, Central Government Chief Town Planner (Member Secretary), representatives of the people elected by the Legislative Assembly, Members from Chambers of Commerce and Industries and what is more important is two experts having special knowledge and practical experience in matters relating to Town and Country Planning, Architecture, Engineering, Transport, Industry, Commerce, Agriculture, Geology etc. It is thus an all representative body which includes expert members also.
149. As regards the functions and powers of the Board, they are broadly given under section 8 of the Act which we have already reproduced. Section 8 of the Act reveals that us regards the Planning and Development Authority, its functions are to guide, direct and to assist them and as regards the Government, its functions is to advice it in matters relating to the Planning and Development, use of rural and urban land in the Union territory. However, to understand the proper nature and importance of the advisory role of the Board, particularly in relation to matters connected with the working of the Planning and Development Authorities under the Act, it is necessary to refer to the relevant provisions of the Act under which various important functions are assigned to the Board, particularly relating to the working of the Planning and Development Authorities.
150. Before we turn to the provisions relating to the working of the Planning and Development Authorities, it is pertinent to see that before the Regional Plan which is prepared for any part of parts of the State by the Chief Town Planner is sent for approval to the Government, the Chief Town Planner is required under section 12 of the Act to sent it to the Board for its consideration. He can then make necessary changes in the Regional Plan in the light of the views expressed by the Board before sending it for approval by the Government.
150A. As regards the functions of the Board in relation to a Planning and Development Authority constituted for a planning area, it may be seen that if the Planning and Development Authority fails to prepare a Map and Register as required by section 26 of the Act, section 28(1)(b) of the Act empowers the Government to direct the Chief Town Planner to prepare a Map and Register for the planning area within the jurisdiction of such a Planning and Development Authority and when the map and Register for such a Planning area is prepared by the Chief Town Planner, section 28(2) of the Act, requires him to submit the same to the Board and it is the Board which then follows the procedure and exercises the powers of the Planning and Development Authority for the purpose of adopting the Map and Register prepared by the Chief Town Planner for the planning area of the Planning and Development Authority in question. As regards the preparation of Development Plan, which includes Outline Development Plan as well as Comprehensive Development Plan, the Board has a similar power under section 33(2) of the Act.
151. Even as regards the Development Plan prepared by the Planning and Development Authority, the Planning and Development Authority is required under section 35(6) of the Act to submit it to the Board with or without alterations or modifications together with the report of the Committee which has considered the objections to the said Development Plan. The Government is also required to consult the Board under section 36 of the Act before granting its approval to the Development Plan. Similarly, when the Town Planning Scheme is prepared by the Planning and Development Authority and is submitted to the Government, the Government is required to consult the Board under section 58(3) of the Act, before according its sanction to the said Scheme.
152. Besides these functions in relation to the plans and Schemes prepared by the Planning and Development Authority, the appellate power is also conferred upon the Board under section 45 of the Act against the orders of the Planning and Development Authority refusing permission under section 44 of the Act to any person, intending to carry out any development in respect of, or change of use of, any land. As is clear from the provisions already referred to, the State Government is required to consult the Board in various other matters such as preparation of the Scheme relating to apportionment of the funds, properties and liabilities of the Planning and Development Authorities concerned as provided under section 18(5) as also under section 19(1)(ii) of the Act.
153. All the above provisions of the Act show that the Board is fully associated with the working of the Act and in particular the activities of the Planning and Development Authorities under the Act. Since it is an appellate authority as shown above, it is conversant with the day to day working of the Planning and Development Authority also. Besides the knowledge of the working of the Act, it has to be seen that as already shown above, the Board is an all representative body which includes experts also. It can, therefore, dispassionately examine all the relevant facets of the planning of a particular area including the question about the working of the Planning and Development Authorities in the existing planning areas which are sought to be amalgamated before expressing its views to the Government when it is consulted under section 18(3) of the Act. Moreover, it is material to see that even according to the affidavit of the Government, the Board is intended to control the exercise of the discretion any power of the Government under section 18(3) of the Act, for which reason according to the Government the said provision is not arbitrary unreasonable or unbriddled so as to offend Article 14 of the Constitution.
154. Taking all these facts and circumstances into consideration, in our view, the consultation with the Board under section 18(3) of the Act is mandatory and not merely directory. There is no doubt that the consultation is not binding upon the Government, but the requirement of such consultation under section 18(3) cannot be said to be merely an empty formality only because majority of the members are, as urged on behalf of the State, the Government Officers, which would not necessarily mean that they would toe the line of the Town and Planning Department which is represented in the Board by its Minister Incharge who is the Chairman and its Secretary as one of the members of the Board. The composition of the Board shows that the Government officer who are the members of the Board are very high officers of the various departments of the Government concerned with the subject of town and country planning who can fearlessly and dispassionately put forward the views of their Departments having bearing on the question of amalgamation of two or more planning areas or sub-division of a planning areas under section 18(3) of the Act. What is more important is that there are experts who are nominated under Clause (j) of sub-section (2) of section 4 of the Act, whose views can carry much weight and importance.
155. The Board is not thus merely an ornamental body whose advice cannot be taken seriously by the Government. The Board which is conversant with the working of the Planning and Development Authority can put for that the difficulties in the planning areas and can give proper suggestions on the question of amalgamation or sub-division of planning areas or area, particularly when no direct consultation with the Planning and Development Authorities concerned is provided under section 18(3) of the Act, or when no opportunity is afforded to them or to the people residing in the planning areas in question to submit their objections and suggestions before any decision is taken thereunder. We cannot therefore accept the submission made on behalf of the Government that since the function of the Board as regards the Government is only advisory, the consultation with it under section 18(3) of the Act should be treated as directory.
156. We are supported in the above approach by the following judgments, of the Supreme Court apart from the judgments relied upon by the learned Counsel for the petitioner. In Banwarilal v. State of Bihar, , it was held that the requirement of consultation with the Mining Board under section 59(3) of the Mining Act, 1952, before framing regulations was mandatory. The Supreme Court considered the Scheme of the legislation and observed that since it would have serious effect upon the working of the mines the legislative intent was to make the consultation with the mining Board mandatory. The same view is taken in the case of Kalipada v. Union of India, . Since power to revoke the licence under section 4 of the object and context of section 4 of the above Act, it was held by the Supreme Court in Narayan v. State of Kerala, , that consultation with the State Electricity Board was mandatory before revocation of licence under section 4 of the Act. We may also refer to the case of Naraindas v. State of M.P., , in which the requirement of prior consultation with the Education Board for prescribing Text Books by the State Government under section 4(1) of the M.P. Prathamkik Middle School Tatha Mdhyamik Shikdha (Pathy Pustaken Sambandhi) Vyavastha Adhiniyam was held to be mandatory. In the said case the consultation was with the Chairman of the Board which was held as not tantamount to the consultation with the Board.
157. In the recent decision of the Supreme Court in the case of (The Municipal Corporation of Greater Bombay v. M/s. New Standara Engineer Company Ltd. , it is held that when the procedural safeguards are provided, normally the said safeguards are mandatory. In the said case, there was a duty castupon the State Government of consultation with the Corporation under the explanation to section 154(3) of the Bombay Municipal Corporation Act, 1888 before recognising a scheme of subsidized housing for industrial workers or person belonging to lower Income groups or poorer classes. After quoting with approval, Professor H.W.R. Wade, in para 13 from his book on Administrative Law it is held that the statutory duty casts upon the State Government to consul the corporation is mandatory since the question of fixing the rateable value for the houses under the recognised subsidized Scheme under sub-sections (1) and (3) of section 154 of the above Corporation Act, affected the financial interest of the Corporation. While considering the question whether the consultation is mandatory or directory, the Supreme Court has refered to the judgments cited supra.
158. It is true that in instant case, the Board is not directly affected, but it then may be seen that as pointed out above, the Board is associated with the planning activities as well as day to day activities of the Planning and Development Authority under the Act by reason of which it knows its difficulties and can assist the Government in arriving at the conclusion upon the question as to what the Planning area should be and whether there should be an amalgamation at all or not. It is in a sense a representative body to safeguard the interests of the Planning and Development Authorities concerned or the inhabitants within their jurisdiction particularly when they are not given any opportunity to submit their objections or suggestions before the action of amalgamation or sub-division is taken under section 18(3) of the Act.
159. We may observe that the question of creation of a Planning area should have a long term perspective because if the planning areas are changed too often it would adversely affect the normal working of the existing planning areas and instead of promoting the planning policy and the interests of the people for better amenities services and utilities may frustrate them. At any rate there may be delay in achieving the planning objectives in the planning areas. In our view, the knowledge and the authority of the Board can assit the Government in this regard and hence it has to be held that the consultation with the Board is mandatory. Even assuming that the consultation with the Board can be construed as directory, the question that arises for consideration with the Board can be construed as directory, the question that arises for consideration is whether there is substantial compliance of the said requirement under section 18(3) of the Act in the instant case. It is necessary for this purpose to see the nature of consultation by the Government with the Board in the instant case.
160. It is the case of the Government that it had made consultation with the Board and the Board had in its 54th Meeting held on 20th June, 1991, approved the proposal for amalgamation of the Planning areas in question in the instant case. The learned Counsel for the petitioner has urged before us that the alleged consultation made with the Board cannot be said to be effective and meaningful consultation and the resolution passed by the Board is in breach of the Statutory rules prescribed under the Act for the meetings of the Board.
161. In support of his submission he had urged that for the first time the subject of amalgamation in question in the instant case was sought to be introduced in the adjourned 52nd Meeting of the Board which was to be originally held on 30-3-1991. He has brought to our notice, agenda for the said meeting which admittedly did not include the subject of amalgamation of the two Planning areas in question. However, the said meeting was adjourned to 12-4-1991 and the Agenda for the adjourned meeting circulated by the respondent No. 2 Members Secretary included for the first time, the said Agenda as Item No. 8. However, the said meeting, was again adjourned to 25th April, 1991. In the said meeting, according to the petitioner who had filed an affidavit to that effect, there was no discussion which had taken place on the afore said Agenda of amalgamation of the two Planning Areas in question. According to her, she was present in the said meeting as an invitee in the capacity of the Chairman of the SPDA. However, according to the affidavit filed by the Respondent No. 2 member Secretary, there was discussion in the said meeting upon the above Agenda, but the decision on the same was deferred. The learned Counsel for the petitioner has placed on record the copy of the minutes of the meeting of the Board held on 25-4-1991, which shows in regard to Item No. 8 that the decision in regard to the Agenda of amalgamation of the two Planning areas in question was deferred.
162. After this 52nd Meeting, the 53rd Meeting of the Board was held on 7-6-1991, but according to the Affidavit of the respondent No. 2 Member secretary the Agenda about amalgamation of Planning areas in question was not kept in that meeting because of the impending general elections at that time. There was thereafter the 54th Meeting of the Board held on 20-6-1991 for which the Agenda circulated to the members of the Board showed that it did not include the subject of amalgamation of planning areas in question. However, for want of quorum, the said meeting was adjourned as per rules and immediately after 10 minutes the adjourned meeting was held in which according to the petitioner additional agenda was introduced which included the subject of amalgamation of the Planning Areas in question.
163. It is in this adjourned 54th Meeting that the decision was taken by the Board to approve the proposal of the Government for amalgamation of the Planning Areas in question. The decision taken on the said additional Agenda at Item No. 6 is follows :--
"Item No. 6 : Decision on the deferred agenda items of the 51st meeting of the Town and Country Planning Board held on 13-3-91 Merger of Southern Planning Development Areas with Ponda Planning Area.
"Discussions on this subject were deferred to in the Meeting held on 25-4-1991. During discussion held to day, it was felt that in order to have a more effective and coordinated administrative and planning set up, it was imperative to have a consolidated area jurisdiction as has already been done in the case of Panaji Mormugao Planning areas. Accordingly, the Board resolved to merge the Margo Planning Areas and the Colva, Benaulim and Cavalossim Planning Areas with Ponda Planning Areas. It was further resolved that the head quarters of the new Planning areas would be at Ponda and the new authority would henceforth be designated as Southern Goa Planning and Development Authority."
164. The principal question urged on behalf of the petitioner is that for effective and mutual consultation, sufficient time should have been given to the Members of the Board for considering the proposal of the Government for amalgamation of the Planning Areas in question. According to him, even the original Notice given for the 54th meeting was not a proper 20 days notices as provided under Rule 6(2) of the Board rules referred to above. At any rate, according to him when the meeting was adjourned for want of quorum, it means that even 1/2 of the total members were not present at the said meeting, one half of the total members being the quorum prescribed as per Rule 6(4) of the Board rules. His submission therefore is that it cannot be said that there was any notice to the members who did not attend the said meeting about the proposal of amalgamation being introduced in the said meeting.
165. The learned Advocate General appearing for the State has submitted before us that the members, at any rate those who were present in the 52nd Meeting, were aware of the subject of amalgamation of the Planning areas in question and had expressed their views in the said meeting in which only the decision was postponed. He has further urged before us that in the 54th Meeting, in which the decision was taken, some of the members who were present in the 52nd Meeting were also present and in particular those who were absent in the 54th Meeting had expressed their views in the 52nd Meeting. The submission is that by counting the number of the members in both the meetings, it should be held that the majority members of the Board had expressed their views and therefore, there is substantial compliance with the requirement of consultation with the Board under section 18(3) of the Act. As regards the provision about notice of the meeting to the members of the Board, it is his submission that the said provision is directory and non compliance there with does not result in invalidating the decision of the Board. He has relied for this purpose upon the judgment of the Supreme Court in the case of K. Narsimhiah v. H.C. Sigri Gowda, . Further, according to him, when an independent body has taken a particular decision, the question whether that decision suffers from infrigement of a rule cannot concern the third party viz. the State.
166. The Member Secretary who is the respondent No. 2 has filed an affidavit in which he has stated that although the subject of amalgamation of Planning areas in question was to be included in the next meeting to which it was deferred for decision as per the Minutes of the 52nd Meeting of the Board, in its 53rd Meeting, the said subject was not included as per the directions of the Chairman of the Board because of general elections and as regards the original agenda of the 54th Meeting, circulated to members, the said subject was not included by him because he had forgotten to include the same. According to him, it is for this reason that the said subject was included in the 54th adjourned meeting with the permission of the Chairman.
167. Although there is a dispute between the parties about the questions as to what actually transpired in the 52nd meeting of the Board and whether the proposal of amalgamation of the two Planning areas in question was at all discussed in the said meeting and further on the question whether the respondent No. 2 Member Secretary had really forgotten to include the said subject in the original Agenda of the 54th Meeting of the Board, it is not necessary to consider the said questions in the view which we are taking about the alleged consideration of the above subject by the Board. However, the fact remains that in the original Agenda of the 54th Meeting this item of amalgamation was not included and the same was included only in the adjourned 54th Meeting which was adjourned for want of quorum and was held immediately after ten minutes.
168. It cannot be gain-said that for effective and meaningful consultation, the Board must have the necessary material before it and all the members must have due knowledge and sufficient time to consider the proposal and to express their views in the Board meeting. Although the subject matter has been discussed in the 52nd Meeting, the decision is actually taken in the 54th Meeting held on 20-6-1991. As regards this meeting, it is not in dispute that the original Agenda of the said meeting did not include the said item of amalgamation of the two Planning areas in question and the same was included in the Agenda and taken up at the eleventh hour with the permission of the Chairman in the adjourned meeting which was adjourned for want of quorum and was immediately held after 10 minutes.
169. As per Rule 6(4) of the Board Meeting, the quorum prescribed is one-half of the total members of the Board. When the 54th Meeting was adjourned for want of quorum it means that less than one-half of the total members of the Board were present in the 54th Meeting, Perusal of Rule 6(4) of the Board Rules further shows that the adjourned meeting can be held after ten minutes and it is not in dispute that it was so held in which the subject of amalgamation of the planning areas in question was introduced with the permission of the chair and was passed. Less than 50% of the members were present at that meeting. The net results is that more than half the total members of the Board were not aware of the fact that the above Agenda would be taken up for discussion in the above 54th Meeting and the decision would be taken in that meeting in regard to the same.
170. It is well settled that when the Corporation or a Corporate body takes a decision it is by due deliberations of its members who have due notice of the subject to be discuss in the meeting and the said decision is taken by passing an appropriate resolution in that regard. It is those members who are present in the said meeting, whose views and voting is important. Admittedly more than half of the members of the Board had no knowledge that the subject of amalgamation of that two planning areas would be discussed in the 54th Meeting. It is possible that all the members may not be interested in all the subjects of the meeting circulated to them and therefore, may choose to remain absent in such meeting. But, if any person is interested in the particular subject, it is necessary that he must have notice and knowledge of the said subject which is to be discussed in the meeting.
171. Moreover, the law as regards the adjourned meeting is that no new business can be introduced unless notice of such new business is given. It would be useful to refer in this regard to the passage from the book on "Law and Practice of Meetings" by Shackelton at page 44 which reads as follows Adjourned Meetings: Notice an adjournment, if bona fide, is only a continuation of the meeting and the notice that was given for the first meeting holds goods for and includes all other meetings following up. If however the meeting is adjourned sine die, a fresh notice must be given. Now new business can be introduced unless notice of such new business is given." The question of Adjourned Meeting is discussed in Halbury's Law of England Vo. IX relating to Corporation. See para 1306 relating to Adjournment, Volume IX, Page 768, in which it is observed :
It is unnecessary to give notice of an adjourned meeting, but no fresh business can be transacted at an adjourned meeting, unless special notice of an intention to transact such business at the adjourned meeting has been duly given.
172. It is, therefore clear to us that in the adjourned 54th Meeting of the Board no new business which was not circulated to the members could have been transacted, expect by giving a special notice to all the members of the said business. The decision taken by the Board upon the proposal of amalgamation of the planning areas in question in the said adjourned 54th Meeting is thus clearly vitiated. Since the compliance with the requirement of consultation under sub-section (3) of section 18 of the Act is held by us as mandatory, it cannot be said that the Board has been duly consultated by the State Government in this matter. It is pertinent to see in this regard that in the case of Naraindas v. State of M.P. there was consultation with the Chairman of the Education Board in regard to the question of prescription of the text books and the Supreme Court held that consultation with the Chairman of the Education Board can no the equated to the consultation with the "Education Board" and since the provision of prior consultation therein was held mandatory the action of the State was struck down in the said case.
173. It is however urged on behalf of the State that the Board is an independent body and except the actual decision of the Board, the State is not concerned with what has transpired in the meeting of the Board and/or how the meeting of the Board was held and whether the Board had taken its decision in a proper manner according to the rules or not because no knowledge can be attributed to the third party viz. the State in that regard. In the instant case, it may be seen that the Government cannot plead any ignorance about the meeting of the Board and how they are held or what has transpired there in because the constitution of the Board under section 4(2) of the Act shows that the Chairman of the Board is the Minister Incharge of Town and Country Planning and the Secretary of the said Department is the Member of the said Board. It is the case of the Government itself that the proposal to amalgamate two Planning areas emanates from and the relevant decision in regard to the same under section 18(3) of the Act is taken in the department of the Government relating to Town and Country Planning. Since the Minister Incharge of the said Department and the Secretary of the said Department are associated with the Board, they cannot plead ignorance about what has transpired in the Board meeting. The above submission made on behalf of the State therefore, deserves to be rejected.
174. As regards the submission made on behalf of the State that the views of the majority should be ascertained by counting the number of the members who were present in the 52nd Meeting and also in the 54th meeting, it has to be seen in the first instance that minutes of the said meetings recorded in the Minutes book do not show the views, if any expressed by the members of the Board. There is also no affidavit filed before us that all the members present in the 52nd Meeting had approved the said proposal. Further, in our view when the decision has to be taken by due deliberation, by the members present in the meeting who can exchange their views and convince each other, the said test cannot be applied for judging whether there is substantial compliance in regard to the question of consultation under section 18(3) of the Act by counting the majority in favour of the proposal for amalgamation in question from both the meetings.
175. Another argument pressed into service by the learned Advocate General as regards the question of substantial compliance is that the provision relating to notice of the meeting of the Board is directed and therefore its noncompliance cannot invalidate the decision taken by the Board in its 54th Meeting held on 20-6-1991. In support he has relied upon the judgment of the Supreme Court in the case of K.Narsimhiah v. Singri Gowde, cited supra. It may be seen that the said case was not a case of 'no notice', but was a case of less than 3 clear days notice as required by section 27(3) of the Mysore Town Municipalities Act, 1951. Moreover, inspite of the inadequate notice 19 out of 20 members were present in the meeting. The Supreme Court therefore held that the proceedings of the meeting were not prejudicially affected by the "irregularity in the service of the notice" and therefore the resolution passed in the said meeting was not invalidated. In our case as we have shown there is no notice at all to more than half the members of the Board and the subject of amalgamation of these planning areas was actually introduced and considered in the adjourned 54th Meeting which as shown above could not have been done. This is not therefore a case like the above case before the Supreme Court. It cannot therefore be held that there is substantial compliance with the requirement of consultation with the Board under section 18(3) of the Act. Still another argument on behalf of the State based upon the confirmation of the minutes of the 54th meeting of the Board in which the above resolution about the amalgamation of the Planning areas in question was passed and which was to take place in the subsequent meeting has to be stated for being rejected only because in confirming the minutes of the earlier meeting the only thing which is done is to see whether the minutes of the earlier meeting are faithfully recorded or not.
176. We cannot therefore accept the submission made on behalf of the State that there is substantial compliance with the requirement of consultation with the Board under section 18(3) of the Act which consultation has to be effective and meaningful and not an empty formality. In this view of the matter it has to be held that there is no valid consultation with the Board as required by section 18(3) of the Act and therefore the impugned notification issued by the Government on 20-6-1991 under section 18(3) of the Act dated 26th June, 1991, is illegal, invalid and inoperative in law and is liable to be struck down. Once the principal notification under section 18(3) of the Act is struck down naturally the consequential notification issued on the same date by the Government constituting new Planning and Development Authority for the new Planning area also deserve to be struck down.
177. Before parting with the case, it is necessary to clear the misunderstanding about what the requirement of section 18(1) of the Act is. It may be seen that although there is a notification issued by the Government in the instant case under section 18(3) of the Act, there is no consequential notification issued by the Government under section 18(1) of the Act, declaring that the new area formed by amalgamation of the planning areas in question is a planning area for the purposes of the Act, because it is only on such declaration being made that the Act is applicable to the said planning area. The submission of the learned Advocate General, in regard to his contention about section 18(3) of the Act being a conditional legislation is that after the action by way of amalgamation or sub-division is taken, an action under section 18(1) of the Act for declaration of the said areas or area as planning areas or area for the purposes of the Act is necessary.
178. However, the submission made by the learned Advocate General is that the application of the Act is implicit in the Notification issued by the Government under section 18(3) of the Act in the instant case. We are afraid that the provisions of the Act cannot be made applicable by any implication. Such provisions are always mandatory. Although there may be a power invoked under a wrong provision or no provision may be referred to while exercising a particular power, the contents of the mandatory requirement must be present in the exercise of the said power. It is a well-settled cannot of construction that when the mode of performing duty is laid down by law, it must be performed in that mode or not at all. See. Taylor v. Taylor, 1875(1) Ch. 24.
State of Gujrat v. Shantial Mangaldas and others, .
Ramchandra Keshav Adke v. Govind Joti Chaware and others, and K. Narasimhiah v. Singri, .
The learned Advocate General appearing for the State has referred us to a decision in the case of Firm Ramdio Onkarmal and another v. State of U.P. and another, which is in relation to the order issued under the Essential Commodities Act. In our view, the said decision is clearly distinguishable.
179. Unless otherwise provided, the Act comes into operation when it is notified in the Gazette after it receives the assent of the President or the Lt. Governor as the case may be as referred to in section 5 of the General Clauses Act. However, when the Act provides a mode for its application, then it is necessary that that mode must be strictly complied with. It may be seen that section 18(1) of the Act requires the Government to make a declaration that any area is a Planning Area for the purposes of the Act and it is only on such declaration being made that the Act is applicable to such area. Such a declaration is wanting in the order issued under section 18(3) of the Act and it therefore, cannot be said that even assuming that the order was good under section 18(3) of the Act, the Act would have applied to the new Planning area constituted by amalgamation of the planning areas under the jurisdiction of the SPDA and the Planning and Development Authority, Ponda, in the absence of a proper declaration being made under section 18(1) of the Act. It has however, to be observed that when a Planning area or areas have to be constituted by the process of amalgamation of two or more Planning areas or by sub-division of a Planning area from the point of view of Planning, it has to be as a long term policy. There is therefore, no need for any haste in the matter and it is desirable all the possible views should be taken into consideration by the Government before taking any such action under the Act.
180. It is further necessary to observe that it would have been desirable if the action had been taken by the Government under section 18(5) of the Act simultaneously with or just before the issuance of the Notification under section 20 of the Act to constitute a new Committee because in the instant case, since the Committee for the new Planning area is already constituted by the notification issued under section 20 of the Act, no action is taken by the Government under section 18(5) of the Act with the result that the old Planning Authorities even according to the Government continues and therefore, there is confusion in the working of the old and the new authorities. In fact being a body corporate, after the scheme of apportionment of the funds, the properties and the liabilities of the Planning and Development Authorities concerned is framed under sub-section (5) of section 18 of the Act, the State Government would have to take action for the dissolution of the existing Planning and Development Authorities under section 139 of the Act as they are body corporate as rightly urged on behalf of the petitioner because section 18 does not contain any such provision.
181. In the result, the instant petitions are allowed. The impugned Notification dated 26-6-1991 issued under section 18(3) of the Act and the impugned Notification dated the same issued under sub-section (1) and (3) of section 20 of the Act are quashed and set aside. Rule made absolute in the above terms. No order as to costs.
182. The learned Advocate General appearing for the State has at this state orally applied for leave to appeal to the Supreme Court and for an interim stay of our judgment for a period of eight (8) weeks from today. The learned Counsel for the petitioner has opposed the grant of leave to appeal to the Supreme Court and also the prayer for interim stay of our judgment because according to him, the points decided against the State in our judgment are on the basis of the judgments of the Supreme Court, which, therefore, according to him, do not involve any substantial question of law. However, in our view the question of law about the consultation with the Board under section 18(3) of the Act is a substantial question of law which is of great public importance also and thus needs to be decided by the Supreme Court. Hence we grant leave to the State to appeal against our judgment under Clauses (a) and (b) of Article 133(1) of the Constitution. As regards the prayer for interim stay of our judgment, we grant interim stay of our judgment for 8 (eight) weeks subject to the undertaking given by the Advocate General during the hearing of these petitions that there would be no interference with the property and funds of the SPDA, which would continue to vest in it till the appropriate orders are sought in that regard from the Supreme Court. Certificate shall issue accordingly.