Gujarat High Court
Vadodara Shaheri Jilla Khedut Mandal ... vs Vadodara Municipal Corporation Thro' ... on 15 July, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/WPPIL/111/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 111 of 2013
With
SPECIAL CIVIL APPLICATION NO. 15206 of 2012
With
SPECIAL CIVIL APPLICATION NO. 2769 of 2013
With
SPECIAL CIVIL APPLICATION NO. 9469 of 2013
With
SPECIAL CIVIL APPLICATION NO. 9470 of 2013
With
SPECIAL CIVIL APPLICATION NO. 9471 of 2013
With
SPECIAL CIVIL APPLICATION NO. 9472 of 2013
With
SPECIAL CIVIL APPLICATION NO. 9473 of 2013
With
SPECIAL CIVIL APPLICATION NO. 1738 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1741 of 2014
With
SPECIAL CIVIL APPLICATION NO. 4279 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
Page 1 of 169
C/WPPIL/111/2013 CAV JUDGMENT
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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VADODARA SHAHERI JILLA KHEDUT MANDAL THROUGH
PRESIDENT....Applicant(s)
Versus
VADODARA MUNICIPAL CORPORATION THRO' MUNICIPAL
COMMISSIONER & 2....Opponent(s)
================================================================
Appearance:
MR MC BHATT with MR JIGAR P RAVAL, ADVOCATE for the Applicant(s) No. 1 (WPPIL No.111 of 2013).
MR AMIT V.THAKKAR, ADVOCATE for the Applicant(s) (SCA Nos.15206 of 2012, 2769 of 2013,
9469 of 2013 to 9473 of 2013).
MR MIHIR JOSHI, SR.ADVOCATE with MR ABHISHEK MEHTA, ADVOCATE for the Applicant(s)
(SCA Nos.1738 of 2014 and 1741 of 2014).
MR PERCY KAVINA, SR.ADVOCATE with MR ABHISHEK MEHTA, ADVOCATE for the Applicant(s)
(SCA Nos.1738 of 2014 and 1741 of 2014).
MR RS SANJANWALA, SR.ADVOCATE with MR JC VYAS, ADVOCATE for the Applicant(s)
(SCA No.4279 of 2014)
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA VISHEN, AGP for the Opponent(s) No. 3
MS VACHA DESAI, AGP (SCA Nos.15206 of 2012, 1738 of 2014, 1741 of 2014 and 4279 of 2014)
MR PARTH BHATT, AGP (SCA Nos.2769 of 2013, 9469 of 2013 and 9470 of 2013)
MR VANDAN BAXI, AGP (SCA Nos.9471 of 2013 to 9473 of 2013)
MR MD PANDYA, ADVOCATE for the Opponent(s) No. 2
MR NILESH A PANDYA, ADVOCATE for the Opponent(s) No. 1
MR HS MUNSHAW, ADVOCATE for VADODARA URBAN DEVELOPMENT AUTHORITY.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Page 2 of 169
C/WPPIL/111/2013 CAV JUDGMENT
Date : 15/07/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) All the captioned writ-applications were heard analogously as the issues involved in those matters are more or less the same.
The first petition filed on the subject was Writ Petition (PIL) No.111 of 2013 and thereafter, the other writ-applications were filed which were ordered to be heard with the Writ Petition (PIL) No.111 of 2013. Therefore, the Writ Petition (PIL) No.111 of 2013 is taken up as the lead matter.
By this writ-application in the nature of a public interest litigation, the petitioner, an association of farmers residing and carrying on agricultural operations within the territorial limits of the Vadodara Urban Development Authority (for short, 'VUDA') seeks to challenge the legality and constitutional validity of the resolution dated 30 th January 2013 passed by the VUDA and the notification dated 21st March 2013 issued by the Government of Gujarat, by which any person who prays for the development permission of his land will have to set apart approximately 35% to 40% of the land for various public purposes at the stage of operation of the development plan. Such restrictions which have been imposed in the General Development Control Regulations (for short, 'the GDCR'), according to the petitioners, are contrary to the provisions of the Gujarat Town Planning and Urban Development Act, 1979, and is also violative of Articles 14 and 300-A of the Constitution Page 3 of 169 C/WPPIL/111/2013 CAV JUDGMENT of India.
The case made out by the petitioners may be summarised as under :
The object of the Association is to vindicate the grievances of the farmers and to make proper and effective representation before the authorities relating to the issues concerning the members of the Association.
The respondent no.1 is a Municipal Corporation constituted under the provisions of the Gujarat Municipal Corporations Act. The respondent no.2 is the authority constituted under the provisions of the Gujarat Town Planning and Urban Development Act, 1976. Thus, the respondent no.1 and the respondent no.2 being statutory authorities and instrumentalities of the State, are amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India.
With an object to consolidate and amend the law relating to framing and execution of the Development Plan and Town Planning Schemes in the State of Gujarat, the State Legislature has enacted an Act No.27 of 1976 known as 'The Gujarat Town Planning and Urban Development Act' (for short, 'TP Act'). The TP Act casts a duty upon the Development Authority to prepare Development Plan under the Act, and also to prepare and execute Town Planning Schemes, if so directed by the State Government. The Development Plan prepared under the TP Act is a macro planning, whereas the Town Planning Schemes are micro planning.
Page 4 of 169 C/WPPIL/111/2013 CAV JUDGMENTSection 12 of the TP Act makes provisions for reservation of land for various public purposes. Any land reserved for public purpose under Section 12 of the TP Act cannot be developed by the owner or occupier of the land. Such land is necessarily required to be acquired by the authority and put under reservation for public purpose within a period of ten years as contemplated by Section 20 of the TP Act. If there is a failure on the part of the authority to acquire the land within the stipulated period of ten years from the date of coming into operation of Development Plan, then in such circumstances, the land holder can issue notice to the authority to release the land from being acquired.
Sections 40 to 76 of the TP Act make provisions for framing and implementation of the Town Planning Schemes. Section 40 makes the provision for reservation of land for public purpose. Similar provisions are made for Development Plan. Upon sanctioning of the draft town planning scheme or preliminary town planning scheme by the Government, the land reserved for all public purposes automatically vests with the concerned authority and the original owner and occupier of the land continues to remain only as the occupier of the reconstituted plot allotted to him under the scheme and reconstituted plot.
Section 12(m) further provides for controlling and regulating the user and development of land. Similar provisions are contained in Section 13(2)(c) empowering the authority to frame regulations for controlling development of the land covered by the development plan.
Page 5 of 169 C/WPPIL/111/2013 CAV JUDGMENTIn exercise of powers conferred by the TP Act, the respondent no.2, VUDA, has framed regulations known as the 'General Development Control Regulations'. The said Regulations framed with the second revised development plan were published in the year 2006 and the same have been sanctioned by the Government of Gujarat by notification dated 18th January 2010. The GDCR makes detailed provision inter alia for regulating and controlling the development of land situated within the territorial limits of the VUDA including the areas under the Vadodara Municipal Corporation. The provisions made in the GDCR include the Floor Space Index (FSI), Margin Road to be kept open on the sides of buildings, height of the building, internal roads etc. The said Regulations also provide for control on the user of the land i.e. commercial use, residential use etc. Considering the text of the regulations, the land available for construction would be to the extent of 40% and approximately 60% of the each plot is required to be kept open for margin, road, or for distance between the road and building, or for internal road or for common open plot etc. After coming into operation of the Development Plan, no development can be made on any land without obtaining development permission from the VUDA. Any plan submitted by the developer is scrutinized thoroughly by the VUDA so as to ensure that the plan is in conformity with the GDCR. Under the provisions of the TP Act and under the provisions of the GDCR, no development permission can be sought in respect of any land which is reserved under Section 12 of the Act for public purpose.
The VUDA has passed the impugned resolution Annexure-
Page 6 of 169 C/WPPIL/111/2013 CAV JUDGMENTA bearing no.217 in its meeting held on 30 th January 2012 and has proposed an amendment in the GDCR directing the developer to set apart approximately 35% to 40% of the land for various public purposes and submit the plan accordingly. All other regulations pertaining to margin land, internal street roads, common open plot etc. would also be applicable on remaining 60% land.
In pursuance of the resolution Annexure-A, the Government of Gujarat published a notification Annexure-B dated 21st March 2013 in the Official Gazette inviting objections and suggestions against incorporation of the impugned provision in the GDCR in respect of setting apart of land to the extent of 35% to 40% by the developer for public purpose in each plot.
The impugned resolution Annexure-A is passed by the VUDA in collusion with the Vadodara Municipal Corporation. The Vadodara Municipal Corporation has passed order dated 4th December 2012 and directed to reserve 40% of area in each plot for public purpose while submitting application for obtaining the development permission.
Sections 12 and 13 of the TP Act confer powers on the Development Authority to frame the General Development Control Regulations. In exercise of powers conferred under Sections 12 and 13 of the TP Act, the Vadodara Urban Development Authority has framed regulations along with the revised development plan and the same have been sanctioned by the Government of Gujarat and the same are in operation. The regulations framed by the Urban Development Authority Page 7 of 169 C/WPPIL/111/2013 CAV JUDGMENT are binding to the citizens as well as to the authority. The impugned resolution Annexure-A and the impugned notification Annexure-B seeking to make amendment in the regulations are beyond the authority, power and jurisdiction of the VUDA and the Government of Gujarat.
The impugned resolution Annexure-A and the impugned notification Annexure-B both are passed in purported exercise of power to make a revised development plan. The reservation for various purposes can be made under Section 40 of the TP Act while framing the TP Scheme. Reservations can also be made for various purposes as indicated in Section 12 of the Act in the development plan. The reservation made under Section 12 of the Act for any public purpose can be implemented only by acquiring the land under Section 20 of the TP Act. In the original plan as well as in the revised development plan from time to time, ample reservation is made for all public purposes indicated in Section 12 of the TP Act and all public amenities can be provided by acquiring the land under Section 20 for which reservation is imposed under Section 12 of the TP Act but there is no concept of reservation to the extent of 40% of land from each plot while making or sanctioning the development plan. The regulation making power conferred by the TP Act can be exercised only within the limits of the authority conferred by the Act. The provisions contained for making the TP Schemes cannot prematurely be implemented during operation of the development plan.
The TP Act does not confer power on the VUDA or on the Government to compel the land owner to reserve approximately 40% of land from each plot before developing Page 8 of 169 C/WPPIL/111/2013 CAV JUDGMENT the land.
The concept of the TP Scheme cannot be imported in the development plan. For framing a town planning scheme, a long drawn detailed procedure is required to be followed and the land owner is required to be afforded an opportunity of hearing on every step of framing of the TP Scheme. In the instant case, by incorporating the concept of the TP Scheme in the development plan, the authority has created a situation as if the TP Scheme is framed.
The mandate to keep 40% land open for the purpose of future town planning scheme is otherwise also not workable because framing of town planning scheme is a very complicated exercise and such a complicated exercise cannot be undertaken plot-wise. The process of framing town planning scheme is an integrated planning of large area of land and not of individual plots.
In such circumstances referred to above, the petitioners have prayed for the following reliefs :
"(A) That Your Lordships will be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, or order quashing and setting aside the impugned resolution Annexure-A No.217 dated 30-1-2013 passed by respondent no.2 Vadodara Urban Development Authority and impugned notification Annexure-B dated 21-3-2013 issued by the Government of Gujarat.
(B) Such other and further relief that is just, fit and expedient in the facts and circumstances of the case may be granted."Page 9 of 169 C/WPPIL/111/2013 CAV JUDGMENT
I. Stance of the Respondent No.1 - Vadodara Municipal Corporation :
The petition in the nature of a public interest litigation is not maintainable and the petitioner is not entitled to any of the reliefs as prayed for in this petition.
After 2006, the areas viz. Kapurai, Kalali, Chhani, Bhapod, Tarshali, Harni, Sayajipura have been included within the limits of the Vadodara Municipal Corporation. The petitioner has applied for permission in respect of the land owned by them falling within the newly added areas.
The development plan for the Vadodara Urban Development Authority has been sanctioned on 18 th January 2012 by the State Government under the provisions of the Gujarat Town Planning Act. After the development plan is sanctioned, the VUDA/VMC is required to frame schemes at the instance of the Municipal Corporation and proceed to resolve the declaration of intention and has also to comply within the procedure provided under the Act. The Municipal Commissioner has been authorized by the VUDA to undertake the exercise for framing of the Town Planning Scheme as required under the provisions of the Gujarat Town Planning Act.
The Vadodara is the third largest city of Gujarat having a population of about 18 lacs according to the 2011 Census. The extent of area under the Town Planning Scheme in Vadodara Municipal Corporation is quite low as compared to the other Page 10 of 169 C/WPPIL/111/2013 CAV JUDGMENT Municipal Corporations.
In respect of the newly added area there are 26 schemes which are being proposed by the Municipal Corporation under the authority delegated to it. All these 26 schemes are at the stage of declaration of intention and publication of the draft scheme as required under Section 41(1) of the Act.
The lands for which the petitioner has sought for development permission are huge parcels of land i.e. more than 5000 sq.mtrs. Since the development plan is already sanctioned, the Municipal Commissioner has undertaken the exercise for framing of the Town Planning Scheme within the newly added area. The areas have been surveyed as required under the provisions of the Gujarat Town Planning Act and the tentative plan has been submitted for consideration to the State Government and the Vadodara Urban Development Authority.
The following considerations have weighed with the Municipal Commissioner while sanctioning deduction of 40% of the land of the total area occupied by the petitioner for which the development permission is sought for.
i. With the experience gained, it has been found that there are several plots on which construction has been made by the developers and the builders. They have allotted the plots and are being occupied by several families. For want of proper infrastructure like sanitation, drainage and supply of drinking water, the residents at present are facing difficulties. Even there is no provision for roads.Page 11 of 169 C/WPPIL/111/2013 CAV JUDGMENT
ii. After the lands are developed, it is very difficult for any authority to persuade the residents or builders for parting with the lands required for making provisions for roads, gardens, drainage and other facilities including fire brigade.
iii. The development plan is sanctioned and any development of the area has to be consistent with the development plan.
iv. The lands belonging to the petitioner for which the development permission is sought for are designated for residential use. If it is a residential zone, then it is obligatory on the part of the local authorities to provide for primary schools, medical dispensaries, houses for the economically weaker section, open space for playground and garden to maintain health, hygiene and green space in the area, neighbourhood plots for local business and residential activities and other facilities like fire brigade etc. v. It is in order to achieve such objectives, the Municipal Commissioner is obliged to provide for 40% deduction while granting the building permission. It is the duty of the local authorities to ensure planned growth with wide road network, sufficient space for schools, aganwadi centers, hospitals, fire safety etc. Under the provisions of the Bombay Provincial Municipal Corporation Act, it is the duty of the Municipal Commissioner to Page 12 of 169 C/WPPIL/111/2013 CAV JUDGMENT consider the future public needs and improvement in the infrastructure which may necessitate the prescribing of streets, widening and modifying of streets, fresh line of a streets, altering of public streets, widening of public streets and such other provisions under Section 205 of the Act read with Rule 7 of Chapter 12 of the Rules.
In order to provide a better future comprehensive planning for the said areas, the Municipal Corporation is justified in insisting that each one of them should leave 40% of their lands while granting the development permission. The Municipal Commissioner has drawn the attention of the State Government for a tentative planning of the new area amalgamated with the Corporation.
According to the Town Planning Scheme, the Corporation has a right to have one or more town planning schemes for the development area or any part thereof and accordingly, the Municipal Commissioner in consultation with the Town Planning Committee of the Vadodara Municipal Corporation has proposed for 26 town planning schemes and accordingly, the Town Planning Committee had sanctioned the request of the Municipal Commissioner for introducing proposed 26 town planning schemes.
After the Town Planning Committee sanctioned the Commissioner's request and the same had been put up before the General Board of the Vadodara Municipal Corporation and the General Board had already passed the resolution with respect to the proposed 26 town planning schemes. In view of the sanction of the Town Planning Committee and approval by Page 13 of 169 C/WPPIL/111/2013 CAV JUDGMENT the General Body of the Vadodara Municipal Corporation, the Municipal Commissioner forwarded the aforesaid 26 proposed town planning schemes for publishing in the Government Gazette and accordingly, they were published in the newspapers. Subsequently, the same were forwarded to the State Government.
The Corporation has already declared the intention to develop the 26 schemes. According to Section 41 of the Act, all the formalities were observed and followed by the Municipal Commissioner in forwarding the schemes to the State Government within the prescribed limitation. According to Section 42 of the Act, the Corporation has already started preparation of the draft town planning schemes and the same is under progress. As the intention is already declared by the Corporation, the present petition is not maintainable and deserves to be dismissed. The Corporation has already declared its intention of framing 26 town planning schemes in which the petitioners' land is situated. Once the intention is declared by the Corporation for the purpose of providing open space, road street, parks, parking space etc. or any other purpose related to public, then the Corporation has a right to pass such resolution of deducting 40% of land in which the permission is sought by the petitioner. As the intention is already declared by the Vadodara Municipal Corporation, therefore, according to the Town Planning Act, there is a restriction on use and development of land which is just and proper and in accordance with the Gujarat Town Planning and Urban Development Act, 1976.
When the Corporation has already declared its intention Page 14 of 169 C/WPPIL/111/2013 CAV JUDGMENT to make 26 town planning schemes, then in such circumstances, the restrictions on use and development of land would come into operation. As the intention of 26 town planning schemes is already declared, the Corporation has power to restrict the petitioner from using and developing the land in question and to deduct 40% from the land in question. Ultimately, before finalizing the scheme, ample opportunity will be given to the petitioners to file their objections before the preliminary scheme is declared by the State Government and, therefore, the present petition is premature.
The Municipal Commissioner had also requested the VUDA to amend the GDCR with respect to the non-town planning area according to Section 19 of the Town Planning Act. Accordingly, the Municipal Commissioner had forwarded a letter on 3rd September 2013 and thereafter various reminders were also given to the VUDA. The VUDA, thereafter, passed the resolution dated 30th January 2013.
In such circumstances referred to above, it has been prayed that there being no merit in this writ-application, the same may be dismissed.
II. Stance of the Respondent No.3 - State Government :
The captioned writ petition is filed at a premature stage inasmuch as the impugned notification dated 21 st March 2013 issued by the State Government is a preliminary notification inviting objections/suggestions from the public at large and the Page 15 of 169 C/WPPIL/111/2013 CAV JUDGMENT same is not final. The petitioner, if is aggrieved by the impugned notification, ought to have filed his suggestions and/or objections against the proposed variation incorporating clause 10.14 'Amenity Space' in the General Development Control Regulation of the development plan of the Vadodara Urban Development Authority sanctioned by virtue of the Government Notification No.GH/V/11 of 2012/DVP-1211-M-452- 1 dated 18th January 2012. According to the notification dated 21st March 2013, it has been made clear that objections, if any, should be given within a period of two months from the date of publication of the notification. Hence, the petitioner herein, without filing the objections, has directly approached this Court by way of the present public interest litigation.
The preamble to the Act states that it is an Act to consolidate and amend the law relating to the making and execution of the development plans and town planning in the State of Gujarat. From the statement of objects and reasons leading to the enactment of the Act, it could be seen that the Bombay Town Planning Act, 1954, as in force in the State of Gujarat, controlled the town planning activities only within the areas falling within the jurisdiction of the local authorities. Planning within the peripheral limits of cities and towns had created certain problems. It was, therefore, felt that if planning activities are undertaken on a more rational and scientific basis with reference to the development of areas which are not necessarily restricted to the areas within the jurisdiction of local authorities, it would be possible to create better environmental conditions. It was, therefore, considered necessary to replace the Bombay Town Planning Act, 1954, by a more comprehensive legislation. Thus, the Act seeks to Page 16 of 169 C/WPPIL/111/2013 CAV JUDGMENT achieve this objective. The provisions have been made in this regard for the constitution of the area development authorities for all the development areas declared under its provisions with an enabling power to the State Government to specify local authorities as the planning authorities in certain areas. Power has also been given to the State Government to declare urban development areas and to constitute development authorities for such areas. Provision has been made for the preparation and making of the development plans and town planning schemes. To secure the planned development of any area, the Act provides for (a) Development Plan, (b) Town Planning Scheme, and (c) for the Control and Development within separate individual parcels of land.
The Development Plan for the development area i.e. for the entire authority area has to be prepared under Section 9 of the Act. The Draft Development Plan is prepared by the Urban Development Authority and comprises of all or some of the matters stated in sub-section (2) of Section 12 of the Act. The Draft Development Plan prepared for the entire area is to be published by the Development Authority under Section 13 of the Act. This would suggest that for any of the proposals for any matter stated under sub-section (2) of Section 12 of the Act, any person residing within the authority area, can raise an objection or give suggestion irrespective of whether the proposal made in the Development Plan relates to any of the lands owned by him or not. Moreover, with respect to certain lands required for the purposes mentioned under clause (b), clause (d), clause (f), clause (k), clause (n), or clause (o) of sub-section (2) of Section 12 of the Act, such lands are to be acquired under the Land Acquisition Act. All these lands for the Page 17 of 169 C/WPPIL/111/2013 CAV JUDGMENT respective purposes are justified through a public participation, by inviting objection/suggestion under Section 13 of the Act. This specifically means that all these purposes are in larger public interest, wherein the person falling within the development area has a stake, direct or indirect.
To achieve planned development for a specific part of the development area, a Town Planning Scheme has to be prepared according to the provisions included in Chapter V of the Act. The making of a Town Planning Scheme is initiated through delineation of the boundary under Section 41 of the Act. Sub-section (2) of Section 40 of the Act specifies in which part of the development area, the Town Planning Scheme can be taken up. For the area decided under sub-section (1) of Section 41 of the Act, the competent authority is required to make the Town Planning Scheme according to the provision of sub-section (1) of Section 42. The Gujarat Town Planning and Urban Development Rules, 1979 make provision for the manner in which the Town Planning Scheme has to be prepared. The Draft Town Planning Scheme made by the competent authority is to be kept open in the owners' meeting under rule 17. The competent authority is obliged to make people understand the proposals made under the Town Planning Scheme of a particular area. In the owners' meeting, the competent authority is required to call the owners of the lands included in a Town Planning Scheme by a public notice as well as by individual notice, to every owner whose address is known. Thereafter, once the owners' meeting is over, the competent authority is required to publish the Draft Town Planning Scheme under sub-rule (1) of rule 18. Any person affected by such scheme can communicate in writing to the Page 18 of 169 C/WPPIL/111/2013 CAV JUDGMENT competent authority, any objection relating to such scheme. Unlike the Development Plan, the Town Planning Scheme is primarily prepared for a specific area or for the people affected by the scheme, who are required to make objection or suggestion.
The purposes mentioned under the Development Plan attract objection/suggestion for a macro level planning of the entire development area, whereas the Town Planning Scheme is made to address the issues for small areas i.e. micro level planning issues. Therefore, even though certain purposes like open space, transport, etc. are specified under sub-section (2) of Section 12 and sub-section (3) of Section 40 of the Act, yet it does not mean that the said purposes have the same effect.
Clause (m) of sub-section (2) of Section 12 of the Act provides for controlling and regulating the use of development of land. Under these provisions, the development on a plot or development of buildings is controlled by imposition of condition, restrictions etc. Moreover, the clause (m) even says that other matters necessary for the carrying out the objects of the Act, may also be considered. Normally, after the Development Plan is prepared, the competent authority under sub-section (2) of Section 40 of the Act in respect of any land which is (i) in course of development; (ii) likely to be used for residential or commercial or industrial or for building purposes; or (iii) already built upon an area, may make the Town Planning Scheme, which may be necessary for micro level planning. Nevertheless, as soon as the Development Plan is sanctioned, the Town Planning Schemes are to be prepared for the different areas. To ensure that while making the Town Page 19 of 169 C/WPPIL/111/2013 CAV JUDGMENT Planning Scheme, land required for the purposes specified under sub-section (3) of Section 40 of the Act are available, it becomes necessary that certain provisions of restriction on development under clause (m) of sub-section (2) of Section 12 of the Act are made, so that when a Town Planning Scheme is made in future, land for the public purposes is available.
In the past, suo motu proceedings were taken up by this Court in the case of Ahmedabad Urban Development Authority covering the area of Bopal, which has been a glaring example in the development area of AUDA, where in the absence of any measures having been taken in terms of Section 12(2)(m) of the Act, haphazard, unplanned, unauthorized and irregular development had become so rampant and so precarious that it was extremely difficult to make and implement the Town Planning Scheme under Section 40(3) of the Act. As a result, this Court had to initiate the suo motu proceedings, culminating into Suo Motu Petition No.14128 of 2005, ultimately resulting in the rendition of the judgment dated 15 th February 2006 of this Court.
The Vadodara Urban Development Authority had forwarded a resolution dated 30th January 2013 to the State Government proposing the amendment in the GDCR of its Development Plan for amenity space. Upon receipt of the proposal from the VUDA, the State Government, with a view to achieving the object of the Act and in the larger public interest, took a decision under Section 19 of the Act to issue a notification inviting objections and suggestions, and in such circumstances, the State Government, in its Urban Development and Urban Housing Department, in exercise of its Page 20 of 169 C/WPPIL/111/2013 CAV JUDGMENT powers conferred under Section 19 of the Act, issued the notification No.GH/V/55 of 2013/DVP-122013-703-L dated 21 st March 2013.
The notification in question is a preliminary notification inviting objections and suggestions and the State Government is proposing to effect the variation in the GDCR of the development plan in the manners specified in the schedule appended to the notification dated 21 st March 2013. By way of the proposed amendment in the GDCR of the Development Plan, it is specified that the developer shall designate land for public purpose for which classification is given which is as follows :
I. For land exceeding 10 Hect.:
1 Public purpose (Housing) to develop for Ten purposes such as Economically Weaker Section Percent Housing Slum Rehabilitation.
2 Public purpose (Green) to develop for purposes such as parks, playgrounds, gardens, open space, etc. 3 Public purpose (Amenities) to develop for Five purposes such as schools, dispensary, fire Percent brigade, public utility, etc. 4 Multipurpose activities such as residential, Fifteen commercial or industrial use etc. Percent II. For land not exceeding 10 Hect.
1 Public purpose (Multipurpose) to develop for any Upto Page 21 of 169 C/WPPIL/111/2013 CAV JUDGMENT purpose including Economically Weaker Section Thirty-
Housing, Slum Rehabilitation, Green Amenities. five Percent The term 'Development' is defined under clause (viii) of Section 2 of the Act. Development with all its grammatical variation and cognate expressions means the carrying of any building, engineering, mining or other operations in or over or under land or the making of any material change in any building or land or in the use of any building or lands, and includes layout and subdivision of any land. Further, clause (ix) of Section 2 defines the term 'Development Area' to mean an area declared to be a development area under Section 3 or as the case may be, an urban development area under Section
22. Further, clause (x) of Section 2 provides for the definition term 'Development Plan' which means a plan for the development or re-development or improvement of a development area.
The Development Plan in general provides for planning on larger spectrum which includes zoning, reservation for garden, public transport, public utility etc. The Development Plan is prepared at the stage when the Town Planning Scheme has not come into existence. The Development Plan provides for macro level plan. In contrast, the Town Planning Scheme is a micro level planning, where all the plots bearing survey numbers are provided regular scheduled final plots, having roads and where the construction/building can be actually put up and the same is permissible.
There is no substance in the allegations levelled by the Page 22 of 169 C/WPPIL/111/2013 CAV JUDGMENT petitioner that in the original plan as well as revised Development Plan, ample reservation is made for all the public purposes as indicated under Section 12 of the Act and that the same can be provided by acquiring the land under Section 20 of the Act, for which reservation is provided. It is stated that clause (b) of sub-section (2) of Section 12 provides for reservation of land for public purpose such as Sports Complex Stadium, Water and Sewerage Treatment Works and Solid Waste Disposal Sites, Schools, Colleges, Educational Institutions, Medical and Public Health Institutions, etc. It is stated that for reservation of land for public purpose as specified under Section 12, the authority has to acquire the land as per the provisions of Section 20 of the Act. It is stated that the procedure for acquisition of land has to be as per the provisions of the Land Acquisition Act.
There is no merit in the case of the petitioner that for a public purpose, the reservation for only that land which is acquired according to the provisions of Section 20, can be utilized for public purpose. To illustrate, if the land is proposed to be reserved for a hospital, the same shall have to be first acquired according to the provision under Section 20 of the Act. Without the acquisition, the land cannot be utilized for the said purpose. In contrast, according to the impugned notification, without following the due procedure of acquisition, the developer is required to set apart upto 40% approximately, for public purpose like School, Dispensaries, Fire Brigade, Public Utilities, etc. which can be utilized as required for public amenities. If such reservation is made in advance, it would be beneficial at the time when the town planning scheme comes into existence. It is, thus, keeping in view the avowed object Page 23 of 169 C/WPPIL/111/2013 CAV JUDGMENT behind the enactment of the Act and in the larger public interest that the notification dated 21 st March 2013 has been issued, which shall be finalized after receiving the objections and representations of the concerned persons.
According to the said notification, the developer shall have to maintain the said area for public purpose till the intention of the Town Planning Scheme is declared under Section 41 of the Act and the same can be immediately handed over to the competent authority at the time when the Town Planning Scheme comes into existence.
The developer does not have to surrender the specific area in any terms of the authorities, however, he has to maintain that area without any encroachment and liabilities for future requirements and public purpose. If the developer seeks permission for developing a commercial complex, then according to the proposed provisions as enumerated in the notification dated 21st March 2013, the developer is obliged to keep 40% of space for public amenities and public utilities so as to enable the authorities to utilize the said space while preparing and implementing the town planning scheme for public purpose.
It has been denied that the reservations made under Section 12 of the Act for any public purpose can be implemented only by acquiring the land under Section 20 of the Act. It has also been denied that all the public amenities can be provided by acquiring the land under Section 20 for which reservation is imposed under Section 12 of the Act and that there is no concept of reservation to the extent of 40% of Page 24 of 169 C/WPPIL/111/2013 CAV JUDGMENT the land from individual plot while making or sanctioning the development plan. It is stated that Section 20 of the Act deals with acquisition of land and there is a reference to specific clauses (b), (d), (f), (k) and (o) of sub-section (2) of Section 12, where the expression 'designation' and 'reservation' are interchangeable for the purpose of the Act. Conspicuously, there is no reference of clause (m) of sub-section (2) of Section 12 in Section 20 of the Act.
In view of what has been stated above, it has been prayed by the respondent no.3 that there being no merit in this petition, the same deserves to be rejected.
Other Allied Writ Applications :
Special Civil Application No.1741 of 2014 has been filed by the Confederation of Real Estate Developers, Vadodara, challenging the same resolution dated 30 th January 2013 passed by the VUDA as well as the notification dated 21 st March 2013 issued by the State Government, which is the subject matter of challenge in the Writ Petition (PIL) No.111 of 2013. The case of the petitioner is more or less the same.
Special Civil Application No.1738 of 2014 has been filed challenging the legality and validity of the notification dated 12th April 2013 issued by the respondent no.1 Surat Municipal Corporation under the provisions of the Gujarat Town Planning and Urban Development Act, 1976, as well as the resolution dated 4th August 2012 passed by the Surat Urban Development Authority. Here also, the subject matter is the same.Page 25 of 169 C/WPPIL/111/2013 CAV JUDGMENT
Special Civil Application Nos.15206 of 2012, 2769 of 2013 and 9469 of 2013 to 9473 of 2013 are all from Rajkot filed by individual persons, praying for an appropriate writ, order or direction declaring the notification dated 3 rd October 2012 issued by the Government of Gujarat, Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar, and the newly inserted clause 10.11 'Amenities Space' in the General Development Control Regulations of Rajkot Urban Development Authority as contrary to the provisions of the Gujarat Town Planning and Urban Development Act and also violative of Articles 14, 19, 21 and 300-A of the Constitution of India.
Special Civil Application No.4279 of 2014 has been filed by the Gujarat Institute of Housing and Estate Developers, Ahmedabad, praying for an appropriate writ, order or direction declaring the proposed regulation no.13.3.6 and the notification issued by the respondent no.1 State of Gujarat dated 4th March 2014 as unjust, arbitrary and violative of the provisions of the Gujarat Town Planning and Urban Development Act, 1976, and also violative of Article 14 of the Constitution of India.
III. Submissions on behalf of the respective petitioners :
Mr.M.C.Bhatt, the learned counsel appearing on behalf of the petitioner in Writ Petition (PIL) No.111 of 2013 vehemently submitted that the impugned resolution results in deprivation Page 26 of 169 C/WPPIL/111/2013 CAV JUDGMENT of property. As soon as the development permission is granted, the developer becomes the trustee of the land set apart for the public purpose land (for short, 'PPL'). Mr.Bhatt submits that the provision of the impugned resolution applies to all the plots for which the development permission is sought for, irrespective of the area of the plot. Mr.Bhatt submits that the impugned resolution would also apply to the small plot holders who intend to develop 500 or 1000 sq.meters of plot. Mr.Bhatt next contended that Article 245 of the Constitution of India confers legislative powers on the State Legislature as well as on the Union on the subjects distributed under the Constitution of India. Thus, according to Mr.Bhatt, the law contemplated by Article 245 of the Constitution of India is required to be enacted either by the Union or by the State Legislature as the case may be. Mr.Bhatt would submit that Article 300-A of the Constitution of India provides that no citizen shall be deprived of his property without the authority of law. The law must be enacted in pursuance of the legislative powers conferred by Article 245 of the Constitution of India. Mr.Bhatt vociferously submits that the impugned regulation is not a legislation enacted by the State Legislature but it is sought to be incorporated in the General Development Control Regulation in pursuance of the delegated authority or delegated legislative power. Mr.Bhatt submits that the delegation of the legislative powers must be exercised within the scope of the authority conferred. The law making provision for delegated legislative powers cannot amend or modify the law. Any provision of law delegating essential legislative powers is unconstitutional and the delegatee cannot be conferred with the powers so as to use it arbitrarily. In support of such submission Mr.Bhatt has placed reliance on three decisions of the Supreme Court : (1) Page 27 of 169 C/WPPIL/111/2013 CAV JUDGMENT Vasu Dev Singh and others v. Union of India and others, (2006)12 SCC 753; State of Rajasthan and others v. Basant Nahata, (2005)12 SCC 77; and Global Energy Limited and another v. Central Electricity Regulatory Commission, (2009)15 SCC 570.
Mr.Bhatt further submitted that the preamble of the impugned regulation does not refer to any particular section in pursuance of which the impugned regulation is sought to be made. According to Mr.Bhatt, the reliance placed by the respondents on the provisions of Section 12(m) of the Gujarat Town Planning and Urban Development Act, 1979 is completely misplaced. Mr.Bhatt submits that even if Section 119 of the Act 1979 is taken into consideration, the question would arise, whether the impugned regulation is within the scope of Section 12(m) or Section 119 of the Act 1979.
Mr.Bhatt very vociferously submitted that the reliance placed by the respondents upon the last phrase of Section 12(m) of the Town Planning Act 'and other matters as may be considered necessary for carrying out the objects of this Act' is also completely misconceived. According to Mr.Bhatt, the various phrases used in Section 12(m) of the Town Planning Act are in respect of regulating the construction of buildings, the size of the building, shape of the building, height of the building, number of stories, parking place, projection, open space, etc. Therefore, according to Mr.Bhatt, the meaning which could be assigned to the last phrase of Section 12(m) quoted above would be governed by the principles of ejusdem generis.
Page 28 of 169 C/WPPIL/111/2013 CAV JUDGMENTAccording to Mr.Bhatt, the last phrase of Section 12(m) could not be interpreted in the manner as suggested by the respondents but, should be interpreted as governing only the aspect of construction of building.
Mr.Bhatt submits that the last part of Section 12(m) i.e. the phrase quoted above cannot be so interpreted that it confers power on the authority to deprive the citizen of his property. In support of such submission, Mr.Bhatt has placed reliance on two decisions of the Supreme Court: (1) Shriram Narain v. The State of Bombay, AIR 1959 SC 459; and 92) Amarchand Chakraborty v. The Collector of Excise, Government of Tripura, AIR 1972 SC 1863.
Mr.Bhatt submits that there is no guideline for prescribing the impugned Regulations either in Section 12(m) or in Section 119 or in any other section or even in the preamble of the TP Act. The primary object of the TP Act is to see that planned development takes place and it results in providing better living conditions, better environment, better infrastructure etc. for the benefit of the citizens. While implementing the town planning scheme under the TP Act, the authority would require land for public purposes. The TP Act recognizes only two modes by which the citizen can be deprived of his land i.e. by reservation of land and/or by acquisition of land. During the operation of the Development Plan, without any restriction of percentage, the land can be reserved for every possible public purpose under Section 12 of the Act and the land so designated can be acquired within the period of 10 years. The land owner has an option to issue statutory notice of six months if the land is not acquired within the period of 10 years Page 29 of 169 C/WPPIL/111/2013 CAV JUDGMENT and if after statutory notice the land is not acquired by the authority, it stands released from reservation.
Mr.Bhatt submitted that the Division Bench of this Court in the case of A.G.G.I. Mandal v. State, reported in 2001(1) GLR 888 has taken the view that the land de-reserved under Section 20 of the TP Act cannot once again be reserved even while framing the TP Scheme. Mr.Bhatt submits that in the case at hand, the owner whose land is released under Section 20 has to once again set apart 35% for public purpose. This land cannot be acquired or obtained by the development authority at the stage of issuance of the notification declaring the intention to frame the TP Scheme. According to Mr.Bhatt, once again if the owner has to set apart 35% of his land for public purpose, then the same would be in clear violation of the law laid down by this Court in the judgment referred to above.
Mr.Bhatt submits that the Special Leave Petition against the judgment and order passed by the Division Bench of this Court referred to above is pending before the Supreme Court but as of now the principle laid down by the Division Bench of this Court holds the field.
Mr.Bhatt submits that the second mode of reservation or acquisition of land is after following the procedure commencing from Section 41 to Section 68 of the TP Act. Public participation is contemplated at various stages. Objections and suggestions are required to be taken into consideration not only by the Government but also by various other authorities. The land owner loses the land from his Page 30 of 169 C/WPPIL/111/2013 CAV JUDGMENT original plot minus the reconstituted plot at the stage of sanctioning of preliminary scheme or final scheme. By the impugned Regulation, this step is brought into operation at the stage of Section 41.
It is further submitted that the primary object of the TP Act is to see that a planned development takes place. By impugned Regulation the entire development depends upon the extent or coincident of percentage of land. Moment the development permission is applied for by the land owner he has to set apart the land as per the percentage fixed in the impugned Regulation for playground, garden, open space, dispensary, etc. scattered over at different places. Thus, the impugned Regulation would operate diametrically opposite to the object of the planned development.
It is submitted that the impugned Regulation is not only in contravention of the legislative policy but also violates the very object of the TP Act. It is submitted that the primary object of the TP Act is to carry out planned development and to achieve this object, the Act provides for acquisition of land for public purpose at a place determined by the authority and not by a sheer accident. It is submitted that the impugned Regulation is sought to be framed with a misconception as if the primary object of the TP Act is to acquire 40% land and providing facilities to the public is a secondary aspect of the Act. It is submitted that the delegated legislative powers can only provide for procedure for implementation of the Act and can, at the most, provide for certain specific details and operate for filling up the gaps in the Act. But, delegated legislative power cannot be used so as to altogether amend, Page 31 of 169 C/WPPIL/111/2013 CAV JUDGMENT modify or repeal the statutory provisions.
So far as Section 119(f) of the TP Act is concerned, it also must be read and interpreted keeping in view the above referred principle of ejusdem generis. It is submitted that the law which makes a provision for framing regulation must make a specific provision prescribing or may be prescribed in the Act itself. There is no provision in the TP Act to prescribe the impugned regulation. The only question is, whether it is covered by 'may be prescribed'. It is submitted that Section 12(m) also uses the phrase 'provide' and not specifically referring to regulation but it can be covered by last part of Section 119 'may be prescribed by regulation'. It is submitted that again this provision is for incidental or ancillary matters and the matters pertaining to detailed procedure for enforcing the Act. But, this phrase cannot mean that it authorizes the authority to delegate the legislative power so as to amend the law and make it totally contrary to the TP Act or any other law for the time being in force.
Mr.Mihir Joshi, the learned senior advocate assisted by Mr.Abhishek Mehta appearing on behalf of the petitioner of Special Civil Application No.1738 of 2014, viz. Surat Builders' Association, submitted that the impugned modification designating for the competent authority, land for public purpose is, in fact, and substance imposition of reservation for a public purpose covered under Section 12(2)(b) of the Act and beyond the scope and ambit of Section 12(2)(m) of the said Act which contemplates provisions for controlling and regulating the use and development of land within the development area.
Page 32 of 169 C/WPPIL/111/2013 CAV JUDGMENTBy seeking to justify the proposal for designation/reservation as being purportedly under Section 12(2)(m) of the Act, the authorities have bypassed the requirement of satisfaction of a particular public purpose necessary for imposing the reservation under Section 12(2)(b) and have consequently side stepped the requirement of satisfaction of the State Government provided under Section 17(2) of the Act prior to according sanction to the proposal. Such justification if accepted, would also render Section 20 redundant since the legislative safeguard of providing for a period of 10 years for acting upon the reservation would be done away with, and since there is no period prescribed for framing/ finalizing the Town Planning Scheme, a citizen would be saddled with such reservation without recourse to Section 20 for an indefinite period of time and compensation thereof would be only at the stage of finalization of the Town Planning Scheme as stipulated in the impugned notification, which would be contrary to the legislative mandate.
A reservation under Section 12(2)(b) does not absolutely restrict development of the land by the owner, which is evident from the provisions regarding the permission for development under Sections 26 to 29 of the said Act while vide the impugned proposal, the reserved land has to be kept vacant and no development is permissible which is contrary to the scheme of the Act.
Mr.Joshi submits that the impugned modification providing for a reservation in terms of a specific percentage of the area of individual plots is not contemplated under the Page 33 of 169 C/WPPIL/111/2013 CAV JUDGMENT provisions of the said Act which is evident inter alia from the following :
(a) The proposals for reservation under Section 12(b) has to be for a specified public purpose proposed to be achieved by such reservation, and after due application of mind, and cannot be a general reservation upto the maximum permissible percentage.
(b) The provisions of Section 17(2) of the said Act further contemplates satisfaction of the Government at the time of sanctioning the development plan that the authority would be able to acquire the land within the stipulated period for fulfilling the public purpose which further indicates necessity of due application of mind prior to imposing the reservation.
(c) An omnibus reservation as contemplated in the impugned modification does not indicate any application of mind regarding the particular public purpose sought to be achieved thereby. Such designation quite evidently cannot sub-serve a public purpose because of the very nature of scattered reservation resulting therefrom.
(d) In fact, even at the stage of framing Town Planning Scheme, Section 40 of the Act only permits reservation of the land of the total area of the scheme and not a plot-
wise reservation.
(e) Even at such stage, the percentages stipulated under the relevant provisions provide the maximum limit of Page 34 of 169 C/WPPIL/111/2013 CAV JUDGMENT reservation and are, therefore, discretionary to be adopted on a need basis after application of mind and do not contemplate a mechanical reservation to the entire extent of the permissible limit.
Mr.Joshi further submitted that the impugned proposal is patently unconstitutional and contrary to the said Act inter alia for the following reasons :
(a) Such reservation is an unreasonable restriction on the right of the land owner in respect of his property and does not sub-serve the public purpose of planned development at all.
(b) By its very nature, the acquisition of a bit of land here and a bit of land there is not contemplated under the Act and does not sub-serve the purpose of the law.
(c) Such proposal is also violative of Article 14 on account of being ambiguous and vague since it is supposed to be made effective upon development by the land owner which itself is a term of very wide import as evident from Section 2(viii) of the Act and would work to immense prejudice and hardship since entirely different development activities would invite an identical reservation, which is unconstitutional.
That the justification of the authorities that such modification is necessary in the public interest does not validate the same inter alia for the following reasons :
Page 35 of 169 C/WPPIL/111/2013 CAV JUDGMENT(a) Since it is an exercise of power under the statute, it has to be justified under the law and not by claimed intent.
(b) The scheme of the Act militates against the presumption of such power of plot wise reservation having been conferred, least of all at the stage of a Development Plan and, therefore also the action is ultra vires.
(c) Even otherwise, the laxity of the State in framing Development Plans and finalizing Town Planning Schemes and its own inaction of not taking expeditious steps contemplated under the Act for ensuring planned development cannot be a ground for seeking conferment of further powers by the authorities to insulate them from the consequences of their belated action and deprive the citizens of their right to property and also deprive them their only remedy of seeking de-reservation of their lands if timely steps are not taken by the authorities.
Mr.Amit Thakkar, the learned advocate appearing for the petitioners of Special Civil Application No.15206 of 2012 and allied matters submitted that the communication/order dated 28th November 2011 insofar as it directs the petitioners to file an affidavit regarding deduction of 40% area towards the proposed Town Planning Scheme and the notification dated 3 rd October 2012, whereby variation is being made in the GDCR of the Rajkot Urban Development Authority and the new clause 10.11 'amenities space' inserted therein would amount to Page 36 of 169 C/WPPIL/111/2013 CAV JUDGMENT freezing of land for an indefinite period.
Mr.Thakkar submits that sub-clause (c) of Clause 2 of the notification provides that the land shown for public purpose land shall be maintained by him free from all encroachments till the intention of Town Planning Scheme is declared and thereafter immediately handover the same to the competent authority. However, no time limit is prescribed within which the intention of Town Planning Scheme would be declared by the authority. The Town Planning Schemes are being framed since around 1976 and still there are areas for which intention of Town Planning Schemes is not declared. It may take decades or may be that the area may never be covered under any Town Planning Scheme. Thus, the amendment in the GDCR by virtue of the impugned notification results into freezing the use of the land ad infinitum, resulting into breach of Article 300-A of the Constitution of India. In support of his submission, Mr.Thakkar has placed strong reliance on the decision of the Supreme Court in the case of Chairman, Indore Vikas Pradikaran v. Pure Industrial Coke and Chemicals Ltd., (2007)8 SCC 705.
Mr.Thakkar next submitted that shifting of burden on the citizen is not permissible. Chapter V of the Act provides for specific stages, time limits and mechanism for consideration of objections, for the purpose of framing and implementation of the Town Planning Scheme. Thus, what is provided for to be done by the appropriate authority, by following a prescribed procedure under the Act after the intention of the Town Planning Scheme is declared, the burden thereof is sought to be transferred and cast upon the private individual, and that Page 37 of 169 C/WPPIL/111/2013 CAV JUDGMENT to, at the stage when even the authority also does not have the power in law to do so. In support of his submission, he has placed reliance on the decision of the Supreme Court in the case of Raju S.Jethmalani and others v. State of Maharashtra and others, (2005)11 SCC 222.
Mr.Thakkar further submitted that there is no source of power, at least till the declaration of intention of the Town Planning Scheme. He submits that if the authority wants to designate 35% area for town planning scheme, it can be done only as per Section 40(jj) while preparing the Town Planning Scheme. Section 40 comes into force only after Sections 41 and 42. Sub-section (1) of Section 41 clearly provides that, before making any Town Planning Scheme under the provisions of this Act in respect of any area, the appropriate authority, in consultation with the Chief Town Planner may, by resolution, declare its intention to make such a scheme in respect of such area. Thus, use of the word 'before' in sub- section (1) of Section 41 clearly mandates that before making any town planning scheme, a declaration of intention has to be there. Unless there is a declaration of intention, the process of making a town planning scheme does not start and, therefore, the authority would have no powers for the purpose of framing a town planning scheme. Further, the Act does not contemplate or provide for any provision whereby 35% of the area is to be reserved or kept in abeyance for an indefinite period by the developer. Therefore, what is not provided in the Act cannot be provided for by way of modification in the regulations.
Mr.Thakkar submitted that what cannot be done directly Page 38 of 169 C/WPPIL/111/2013 CAV JUDGMENT cannot be permitted to be done indirectly. He submits that the reliance on Section 12(m) as the source of power is misconceived. If the respondent authorities want to make provision as per Section 40(jj), they have to first invoke Section 41 and follow the procedure as contemplated under the Act. Chapters II, III and IV of the Act relate to development plan i.e. Macro Level Planning. Chapter V relates to the Town Planning Scheme i.e. Micro Level Planning. Different sections and provisions are provided in the Act for the purpose of macro level planning i.e. development plan, and micro level planning i.e. town planning scheme, which would reveal from the following :
(i) Section 12 provides for 'contents of the draft development plan' whereas Section 40 provides for 'making and contents of a town planning scheme' and Section 44 provides for 'contents of draft scheme'.
(ii) In a development plan, provisions for road is provided in sub-clause (d) of sub-section (2) of Section 12, and land for that is required to be acquired under Section 20.
In the Town Planning Scheme, provision for road is in sub- clause (c) of sub-section (3) of Section 40 and Section 48A provides for vesting of the land required for the purpose of the road.
(iii) Section 26 provides for restrictions on development after publication of the draft development plan whereas Section 49 provides for restrictions on use and development after declaration of the Town Planning Scheme.
Page 39 of 169 C/WPPIL/111/2013 CAV JUDGMENTTherefore, the respondent authorities cannot invoke the provisions of Section 12(m) for providing something for the purpose of the Town Planning Scheme which may come in future. Importing of Section 12(m) for the purpose of the Town Planning Scheme would amount to permitting to bring in something by a side door in Chapter V, which otherwise is not contemplated in that Chapter.
Mr.Thakkar submitted that the designation of land is in fact reservation without acquisition. He submits that although the notification uses the word 'designate' 35% of the total area, yet it is reservation of the land. Clause 2 of the notification provides for designating for public purpose (PPL), which specifies the purposes such as schools, playground, park, which are included in sub-clause (d) of sub-section (2) of Section 12, and for that purpose, if the land is designated in the Final Development Plan, then Section 20 provides for acquisition of such land either by an agreement or under the provisions of the Land Acquisition Act. Therefore, if the land is to be designated for such purpose as specified in the notification, relying upon Section 12, then the only alternative with the authority is to acquire the land under Section 20. Sub- section (2) of Section 20 further provides for lapsing of the designation of the land if the proceedings under the Land Acquisition Act are not commenced within 10 years as stated in the said sub-section, however, no time limit is specified in the notification. The notification is, therefore also, contrary to Section 20 of the Act.
Mr.Thakkar lastly submitted that in absence of the draft Page 40 of 169 C/WPPIL/111/2013 CAV JUDGMENT town planning scheme and in absence of any planning as to where the roads are to be framed, how the plots are to be reconstituted, what area is to be designated for what purpose, designating scattered and unequal plot area here and there, would amount to putting the cart before the horse and would not serve the purpose and the objects of the Act. Further, sub- section (2) of Section 17 provides that any proposal for reservation of any land for a purpose specified in clause (b), or
(n) or (o) of sub-section (2) of Section 12 shall not include the said reservation in the development plan, unless it is specified that such authority would acquire the land, whether by agreement or compulsory acquisition, within 10 years from the date on which the final development plan comes into force. The designation of the land as stated in the notification amounts to mechanical reservation without any application of mind, which is neither the purpose nor the intent nor the object of the Act.
IV. Submissions on behalf of the respondents :
Mr.S.N.Shelat, the learned senior advocate assisted by Mr.Nilesh Pandya appearing on behalf of the Vadodara Municipal Corporation has vehemently opposed the writ- applications. Mr.Shelat submits that the proposed variation in the GDCR of development plan of the VUDA is an attempt to regulate the development activities by directing the developers to leave aside 40% of the open land for the public amenities and for rehabilitation of economical weaker section in order to control the haphazard development which could be undertaken by the developers in absence of any regulation.Page 41 of 169 C/WPPIL/111/2013 CAV JUDGMENT
Mr.Shelat further submits that the proposed regulation does not provide for transfer of possession nor does it restrain transferability nor does it provide for vesting the title in the authority. It is, therefore, not reservation nor is it acquisition.
Mr.Shelat submitted that though there is no time limit fixed, yet it would depend upon the speed with which the authorities undertake the Town Planning Scheme. However, the object is to serve the larger public interest and has to be looked from the point of view of the small landholders as also the occupants of the buildings that may come up in the said area.
It has also been submitted that none of the provisions of Chapter-V as regards the Town Planning Scheme have been supplanted or substituted or made redundant because of the provisions for providing 40% deduction from the original plot before the grant of development permission. All the provisions will have to be complied with i.e. meeting will be convened before the declaration of intention is made.
It is further submitted that when it is stated that possession be handed over after declaration of intention under Section 41 or soon after Section 41A, it is obvious that only after vesting under Section 48A or Section 67 is effected, possession can be taken over by the local authority.
Section 119(2)(f) read with Sections 12(1) and 12(2)(m) provides enough power for making of Development Control Regulation to effectuate and implement the declaration of intention for the Town Planning Scheme and preliminary Town Page 42 of 169 C/WPPIL/111/2013 CAV JUDGMENT Planning Scheme.
Mr.Prashant Desai, the learned senior advocate appearing for the Surat Municipal Corporation has also vehemently opposed all the writ-applications. He submits that the Surat Urban Development Authority has passed the Resolution No.225 on 4th August 2012 requesting the State Government to modify the development plan for inclusion of amenity space so that when the Town Planning Schemes are made in future, there may not be any difficulty in making the Town Planning Scheme which will be in accordance with the development plan. The said action is challenged by the petitioner on various grounds.
He submitted that the census population of SUDA, including the Surat Municipal Corporation, was as under :
(i) In 1981 - 11.41 lakh population;
(ii) In 1991 - 17.91 lakh population;
(iii) In 2001 - 30.83 lakh population;
(iv) In 2011 - 50.00 lakh population.
The first development plan was prepared and came into force in the year 1986 while the revised development plan came into force in the year 2004.
He submitted that when the development plan is prepared, the GDCR is also framed and which is a part of the development. The draft development plan is prepared for the entire area of SUDA, including the area of the Surat Municipal Corporation where the zones are indicated in colours as Page 43 of 169 C/WPPIL/111/2013 CAV JUDGMENT prescribed in Rule 4 of the Gujarat Town Planning and Urban Development Rules, 1979.
The reservation for public purpose which is reserved for the Authority and the Corporation as well as the State Government and the Union Government are shown in white colour. The main roads are indicated in the development plan and if there is a proposal for reservation for public purpose, like sewage disposal, water supply, etc. the same are indicated in the development plan by white colour. The different numbers are also given so far as reservation is concerned. For example, the land reserved for district centre for the Surat Municipal Corporation is numbered as 'C-1' on the plan, the description of the area is mentioned and the area in square meter is also mentioned. All reservation made for the Surat Municipal Corporation for vegetable market, district centre, commercial centre, mutton market, godown, etc. are given different numbers and the lands are also reserved for the Gujarat Housing Board, SUDA, Gujarat Slum Clearance Board, State of Gujarat, Taluka Panchayat, GIDC, GSPCL, open space, garden, traffic iceland. All these lands have been numbered in the development plan like 'C-1', 'H-12', 'O-1', 'P-1', etc. For example, the land admeasuring 9550236 sq.mtrs. is also reserved for Airport complex for Civil Aviation Department as 'T-28'. It is submitted that the total area under reservation is 79.68 sq.kilo meters i.e. 11% of the SUDA area.
Mr.Desai submits that under the Act, the development is defined and development includes the layout and subdivision of any land. Under the GDCR, various provisions are made in respect of development of land and the development work.
Page 44 of 169 C/WPPIL/111/2013 CAV JUDGMENTChapter 10 provides for the things to be considered in respect of the development of land. It includes layout of building units, amalgamation and/or subdivision of building units, internal building layout, level of building units, requirement of road width, approaches to the building, common plot, percolating wall and soak-pit etc. Mr.Desai submits that the SUDA found it difficult for providing reservation in the town planning scheme when made because the same was not provided in the development plan and, therefore, it was required to be amended and the request was made to the State Government for amendment of the development control regulation.
Mr.Desai submits that the impugned notification clause 10.11 is sought to be included as clause for amenity space and public purpose land. In respect of amended space is concerned, 'amenity' is also defined in clause 2.5 of the GDCR and Section 2(ii) in the Act, while for public purpose lands are to be kept aside in respect of the large area of the land so that when the town planning scheme are made, the same can be reserved for public purpose as provided in Section 40(3)(jj) of the Act.
Mr.Desai submitted that so far the SUDA and the Surat Municipal Corporation are concerned, the total area where the schemes are made or where the draft scheme is prepared and submitted to the State Government for proposed town planning scheme, there are 129 schemes which are having the area of 17916.11 hectares while the total area of the SUDA is 72200 hectares. Therefore, the SUDA and/or the Corporation is Page 45 of 169 C/WPPIL/111/2013 CAV JUDGMENT also required to make the town planning scheme in the remaining portion of 55000 hectares of land in future. Approximately, 55000 hectares of land is part of the development area as notified under Section 22 of the Act and the SUDA and/or the Corporation is duty bound to have the town planning scheme in future.
Mr.Desai further submitted that while making the development plan, the population projection was also considered in respect of the area of the Surat Municipal Corporation and the SUDA. Considering the growth, the area which was 93.17% between 1981 and 1991, 62.37% between 1991 and 2001, 83.32% between 2001 and 2011, it will be 60% from 2011 to 2021 and about 45% from 2021 to 2031. So, the population in 2011 which is about 45 lakhs would increase to about 1 crore in the year 2031 only in the Surat Municipal Corporation Area, while other than the Corporation area, there will be growth at the same rate which will have to be considered. Looking to the population growth rate making of town planning scheme in respect of 55 hectares of land is absolutely necessary and to see that in future there may not be any difficulty in preparing and making the town planning scheme in accordance with the provision of Chapter 5 of the Act, the impugned provision has been proposed in the interest of public at large so that the public at large can get better facility in future which is the purpose and the object of the Act.
Mr.Desai submits that the vehicles are also increasing day-by-day and to have the proper traffic circulation, not only in the area of Surat Municipal Corporation, but also in the SUDA area, it is necessary to have large ring roads, and for Page 46 of 169 C/WPPIL/111/2013 CAV JUDGMENT that purpose, some portion of land is required to be reserved, not only in the development plan, but also in the town planning scheme upto 50% approximately in the total as per clause (jj) of sub-section (3) of Section 40.
Mr.Desai submits that the impugned provision is sought to be made at the initial stage so as to protect the individual interest of small plot holders. For example, in many cases the developer/ builder transfers the land to a small plot holder which may come in the road by some reservation when the town planning scheme is made and thereby the small plot holder is required to lose the land and the construction, because in most of the cases final plots are carved out from the original plots and other remaining lands are already transferred to some other parties by the developer. This provision is made to protect the interest of the small plot holder so that from the very beginning they should know that from which part the road is passing through the town planning scheme and which part is kept reserved so that the said portion should not be alloted by the developer to the small plot holder. This is very clear from the clause 10.4 which also provides that the decision of the competent authority shall be final in computing the land and the road and the purpose of width and also the alignment of the internal road and all the rights are to be provided according to the direction by the competent authority. Therefore, the small plot holder will not be affected by the proposed amendment.
V. Submissions on behalf of the State Government: Page 47 of 169 C/WPPIL/111/2013 CAV JUDGMENT
Mr.Kamal Trivedi, the learned Advocate General assisted by Ms.Sangeeta Vishen, the learned Assistant Government Pleader appearing for the State Government has strenuously contended before us that there is no merit worth the name in the challenge to the validity of the proposed variation in the General Development Control Regulation (GDCR). Mr.Trivedi submits that the preamble to the Town Planning Act, if read in juxtaposition with various provisions of the Act, makes it very clear that the Act is to facilitate planned development and any departure from planning may result in dis-figuration of any upcoming area and may also pose a considerable threat to the providence of the infrastructure and maintenance of the ecological plant and environmental safeguards.
Mr.Trivedi submits that clause (m) of sub-section (2) of Section 12 of the Act confers wide powers in favour of the Area Development Authority, inter alia, (i) to regulate the use of development of the land within the development area, (ii) to impose conditions and restrictions in regard to the open space to be maintained for buildings and (iii) to provide for other matters as may be considered necessary for carrying out the objects of the Act.
Mr.Trivedi, in such circumstances, submits that there being no merit in the writ application the same deserves to be rejected.
VI. ANALYSIS :
Page 48 of 169 C/WPPIL/111/2013 CAV JUDGMENTHaving heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for our consideration is whether the petitioners are entitled to any of the reliefs prayed for in the respective petitions.
The petitioners seek to challenge the validity of the proposed variation in the General Development Control Regulations, whereby a new regulation is sought to be added, specifying the expected percentage of land i.e. 40% or 35% to be set apart by the developers while developing their lands, which can be allotted by the area development authority in a development plan.
The challenge is substantially on the ground that there is no provision or power to do so with the authority and, therefore, such an exercise is contrary to law and amounts to imposing unreasonable restriction on the right of the land owners to use their land at the stage of development plan, thereby infringing Article 300-A of the Constitution of India. The principal argument canvassed by the learned counsel appearing for the respective petitioners is that what can be done by providing for reservation to the extent of 50% of land while framing Town Planning Schemes under Section 40 of the Gujarat Town Planning and Urban Development Act, 1976 cannot be done at the stage of development plan.
On the other hand, the case of the State and its authorities is that the provisions of the Act are to be interpreted by taking recourse to the principle of purposive construction in regard to the scope and the object of the Act Page 49 of 169 C/WPPIL/111/2013 CAV JUDGMENT and that there is ample authority to specify the expected percentage of land to be kept aside, which could be allotted by the area development authority in a development plan so as to facilitate better and effective implementation of the town planning scheme at a future date.
The purpose and object in proposing the present amendment to the Development Control Regulation is that there has been enhancement of the limits of the Municipal Corporation and once it becomes the part of urban area, the owner of the land or the builder initiates the construction activity forthwith and when the Area Development Authorities propose for town planning scheme by declaration of intention, they find the following difficulties :
(1) It is not possible to get the open land for the purpose of amenities of public, wide roads, provisions for the schools, fire brigade, gardens, residential accommodation for economically backward.
(2) While seeking approval of layout plan, the land holders provide less width to the road so that it is possible to sell surplus land.
(3) While framing the T.P.Scheme, the widening of the road will lead to the deduction of the area from the land holder or occupant causing heart burning. The authorities have to deduct the land and make provisions from the common plot. The resultant effect is that those who are holding large area of land cause suffering of small land holders.Page 50 of 169 C/WPPIL/111/2013 CAV JUDGMENT
It is in this context that the proposed amendment to the Development Control Regulation is sought for.
Ordinarily, the Court would allow a litigation in public interest if it is found:
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That the process of public interest litigation was not being abused by politicians or other busybodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(v) That the litigation initiated in public interest was such that if not remedied or prevented would Page 51 of 169 C/WPPIL/111/2013 CAV JUDGMENT weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vi) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(vii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(viii) That the person approaching the Court has come with clean hands, clean heart and clean objectives;
(ix) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busybody or persons or groups with a mala fide objective of either for vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest.
IMPUGNED NOTIFICATION :
"GOVERNMENT OF GUJARAT URBAN DEVELOPMENT AND URBAN HOUSING DEPARTMENT SACHIVALAYA, GANDHINAGAR Page 52 of 169 C/WPPIL/111/2013 CAV JUDGMENT NOTIFICATION Date: 21/3/2013 THE GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT ACT, 1976 No.GH/V/55 of 2013/DVP-122013-703-L; WHEREAS the Government of Gujarat is of the opinion that it is necessary, in the public interest, to make variation in the General Development Control Regulation of Development Plan of Vadodara Urban Development Authority, sanctioned under Government Notification, Urban Development and Urban Housing Department No.GH/V/11 of 2012/DVP-1211-M-452-1, dated 18/1/2012 (hereinafter referred to as "the said GDCR of Development Plan" and "the said Authority").
NOW THEREFORE, in exercise of the power conferred by Section 19 (1) of the Gujarat Town Planning and Urban Development Act, 1976 (President's Act No.27 of 1976), (hereinafter referred to as "the said Act") the Government of Gujarat hereby:-
3. Proposes to modify the aforesaid development plan by way of variation in the manner specified in the Schedule appended hereto, and;
4. Calls upon any person to submit suggestion or objection, if any, with respect to the proposed variation to the Principal Secretary to Government of Gujarat, Urban Development and Urban Housing Department, Block No.14, 9th Floor, Sachivalaya, Gandhinagar, in writing within a period of two months from the date of the publication of this notification in the official gazette.
SCHEDULE Proposed variation in the said GDCR of Development Plan of the said Authority sanctioned by Government Notification, Urban Development and Urban Housing Department No.GH/V/11 of 2012/DVP-1211-M-452-1, dated 18/1/2012.
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The new clause No.1014 "Amenity Space" is inserted as under:
Page 53 of 169 C/WPPIL/111/2013 CAV JUDGMENTFor development, where the town planning scheme is not declared, to make land available for amenities, the development shall be regulated namely:-
1) Roads:
a. The competent authority shall, to provide proper excess, circulation and mobility in the area, prepare a road network plan, road network plan shall comprise of the layout of roads of proper hierarchy. The road shall sync with any, existing road or development or any other classified road and with the roads of any town planning scheme in the vicinity. Such roads shall have free public transit and shall be called public roads. To make these roads as public roads, the competent authority shall give a notice in the local newspaper and within a period of two months, invite objections and suggestions from date of publication. On receiving the objections and suggestions, the competent authority shall, within 15 days, consider them, if necessary modify, and declare them through a notice in local newspaper as public roads.
b. The developer for any land to be developed shall with respect to roads...
i. Prepare the layout in the following manner.
1. All roads in the layout such that:-
2. Where there is no public road passing through the land, provide minimum 18.0 mts. The alignment of such road shall be decided in consultation with the competent authority.
ii. For public transit on such roads given an undertaking.
2) Public Purpose Land (PPL):
a. The developer, shall designate for the competent authority land for public purpose namely:-
i. For land exceeding 10 hect. :-
1 Public purpose (Housing) to Ten
development for purposes Percent
Page 54 of 169
C/WPPIL/111/2013 CAV JUDGMENT
such as Economically Weaker
Section Housing Slum
Rehabilitation.
2 Public Purpose (Green) to Five
develop for purposes such as Percent
parks, playgrounds, garden,
open space etc.
3 Public Purpose (Amenities) to Five
develop for purposes such as Percent
schools, dispensary, fire
bridge, public utility etc.
4 Multi Purpose activities such Five
as residential, commercial or Percent
industrial use etc.
ii. And for land not exceeding 10 hect.
1 Public purpose (multi-utility) Upto 35
to develop for purpose Percent
including, Economically
Weaker Section Housing, Slum
Rehabilitation, Green
Amenities.
b. The developer shall provide all public purpose land
(PPL) as namely:-
i. In one or more parcels, each parcel not having
an area less than 1000 sq.mts. Such parcels, if possible, shall be located in a manner that they have an access from public road.
c. The developer along with the application will submit an undertaking that, the land shown for PPL, shall be maintained by him free from all encroachments till the intention of Town Planning Scheme is declared under Section 41 of the said Act and thereafter immediately hand over the same to the competent authority without any encroachments and liabilities.
3) However, with reference to number 1 & 2 above the total designated area for roads and public purpose land in any Page 55 of 169 C/WPPIL/111/2013 CAV JUDGMENT layout may be 40% of total area of the layout.
4) Compensation & Maintenance:
The competent authority shall, once the area is included in the Town Planning Scheme, compensate for the land designated for road and public purpose land and then take the possession of the same.
By order and in the name of the Government of Gujarat.
Sd/- (P.L.Sharma) Officer on Special Duty and Ex-Officio Joint Secretary to the Government of Gujarat, Urban Development and Urban Housing Department."
Before adverting to the rival submissions on merits, it is necessary for us to consider the objects and reasons of the Act 1976.
The Act 1976 was enacted to consolidate and amend the law relating to the making and execution of the development plans and town planning schemes in the State of Gujarat. The Act has been enacted to ensure that the Town Planning Schemes are made in a proper manner and their execution is made effective and for that a local authority is empowered to prepare a development scheme for the entire area or a part within its jurisdiction. On account of urbanization, there has been a heavy influx of people to the cities. With the advent of social and industrial progress in India couple with the abnormal growth of population, the necessity of a special legislation for making better provisions for development plan, town planning Page 56 of 169 C/WPPIL/111/2013 CAV JUDGMENT schemes and creation of new towns, has fortified the fitness of enacting Act of 1976. To ensure the implementation of plans and schemes under this Act, provision for compulsory acquisition of land, required for public purposes in respect of plans and schemes, was the indispensable and inexorable task ventured by the State Government. The Act has imposed limits on the liberties of the citizens and those arise out of the liberties of other citizens or on account of public good or in the public interest. For the proper framing of the schemes and implementing them, the individual rights are made subordinate to the wider social interest of the society and civic amenities.
In the aforesaid context, we may quote with profit a decision of the Supreme Court in the case of State of Gujarat v. Shantilal, reported in AIR 1969 SC 634. The Supreme Court was dealing with the Bombay Town Planning Act, 1955 which was prevailing at the relevant point of time. The observations made by the Supreme Court in paragraphs 8, 9, 11 and 20 are as under:
"8. The principal objects of the town planning legislation are to provide for planned an controlled development and use of land in urban areas. Introduction of the factory system into methods of manufacture, brought about a great exodus of population from the villages into the manufacturing centers leading to congestion and overcrowding, and cheap and insanitary dwellings were hurriedly erected often in the vicinity of the factories.
Erection of these dwellings was generally subject to little supervision or control by local authorities, and the new dwellings were built in close and unregulated proximity with little or no regard to the requirements of ventilation and sanitation. Necessity to make a planned development of these new colonies for housing the influx of population in sanitary surroundings was soon felt. The Bombay Legislature enacted Act 1 of 1915 with a view to Page 57 of 169 C/WPPIL/111/2013 CAV JUDGMENT remedy the situation.
9. The Bombay Town Planning Act 27 of 1955 is modeled on the same pattern as Act 1 of 1915, but with one important variation. By Chapter II of the new Act it is made obligatory upon every local authority to carry out a survey of the area within its jurisdiction and to prepare and publish in the prescribed manner a development plan and submit it to the Government for sanction. A development plan is intended to lay down in advance the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are to be carried out and regulated, with particular reference to-
(a) proposals for designating the use of the land, for the purposes such as (1) residential, (2) industrial, (3) commercial, and (4) agricultural;
(b) proposals for designation of land for public purposes such as parks, playgrounds, recreation grounds, open spaces, schools, markets or medical, public health or physical culture institutions;
(c) proposals for roads and highways;
(d) proposals for the reservation of land for the purpose of the Union, any State, any local authority or any other authority established by law in India;
and
(e) such other proposals for public or other purposes as may from time to time be approved by a local authority or directed by the State Government in that behalf.
By making it obligatory upon a local authority to prepare a development plan under Bombay Act 27 of 1955 it was clearly intended that the Town Planning Schemes should form part of a single cohesive pattern for development of the entire area over which the local authority had jurisdiction.
11. Under the Bombay Act 27 of 1955 after a development plan is sanctioned, the local authority makes a declaration of its intention to make a scheme and then prepares a draft scheme setting out the size and shape of every reconstituted plot; so far as may be, Page 58 of 169 C/WPPIL/111/2013 CAV JUDGMENT to render it suitable for building purposes and where the plot is already built upon, to ensure that the building as far as possible complies with the provisions of the scheme as regards open space. The scheme may also make provision for lay out of lands; filling up or reclamation of lands; lay out of new streets, roads, construction, diversion, extension, alteration, improvement and stopping up of streets, roads and communications; construction, alteration and removal of buildings, bridges and other structures; allotment or reservation of lands for roads, open spaces, gardens, recreation grounds, schools, markets, green belts, dairies, transport facilities, and public purposes of all kinds; drainage, lighting; water-supply; preservation of objects of historical or national interest or beauty and of buildings used for religious purposes; imposition of conditions relating to constructions and other matters not inconsistent with the object of the Act as may be prescribed. The draft scheme is published after it receives the sanction of the State Government. The State Government then appoints Town Planning Officer to perform the duties specified in Section 32 of the Act. An appeal lies to a Board of Appeal against certain decisions which the Town Planning Officer may make. After the Town Planning Officer has dealt with the various matters relating to the draft scheme, and the appeals against his orders have been disposed of, the State Government may sanction the scheme, and on and after the date fixed in the notification sanctioning the the Town Planning Scheme has effect as if it were enacted in the Act.
20. Counsel urges that the object of the Town Planning Act in pith and substance is to facilitate planned development, to ensure healthy surroundings to the people living in congested localities and to provide them with sanitation and other urban facilities conducive to healthy living and on that account is an Act falling within Entry 6 of List II of the Seventh Schedule -"Public health and sanitation", and Entry 20 of List III - "Economic and social planning". But the competence of the Legislature to enact legislation on the subject-matter of the Act and for the object intended to be served thereby are irrelevant in determining whether any fundamental right of a person is infringed by the impugned Act. The doctrine of pith and substance is applicable in Page 59 of 169 C/WPPIL/111/2013 CAV JUDGMENT determining whether a statute is within the competence of the legislative body, especially in a federal set up, where there is division of legislative powers: it is wholly irrelevant in determining whether the statute infringes any fundamental right."
In Vasantlal Maganbhai v. State of Bombay, AIR 1961 SC 44, the Supreme Court observed that in most of the towns and cities, there is no room for extension of public amenities like hospitals, schools, colleges and laboratories or parks. In order that the suburbs and the surroundings of the towns and cities be developed properly and not allowed to grow haphazard, the legislature of Bombay felt that town should be allowed to grow only on planned schemes formulated on the basis of a development plan and it is this development which is required to be prepared by the rule making authority and which is to be sanctioned by the Government after inviting objections and considering the same.
The observations made by the Supreme Court in Padma v. Hiralal Motilal Desarda and others, (2002) 7 SCC 564, are also worth noting. The Supreme Court while explaining the object and importance of the development plan held that the development planning is the DNA of urbanization. The following observations of the Supreme Court are worth taking note of.
"31. Laws dealing with development planning are indispensable to sanitation and healthy urbanization. Development planning comprehensively takes care of statutory, manual, administrative and land-use laws hand in hand with architectural creativity. In the words of a well-known architect, development planning is the DNA of urbanization the genetic code that determines what Page 60 of 169 C/WPPIL/111/2013 CAV JUDGMENT will get built. A development plan is essential to aesthetics of urban society. American Jurisprudence 2d (Volume 82, at page 388) states:
"'Planning', as that term is used in connection with community development, is a generic term, rather than a word of art, and has no fixed meaning. Broadly speaking, however, the term connotes the systematic development of a community or an area with particular reference to the location, character, and extent of streets, squares, and parks, and to kindred mapping and charting. Planning has in view the physical development of the community and its environs in relation to its social and economic well- being for the fulfillment of the rightful common destiny, according to a "master plan" based on careful and comprehensive surveys and studies of present conditions and the prospects of future growth of the municipality, and embodying scientific teachings and creative experience."
The significance of a development planning cannot therefore be denied. Planned development is the crucial zone that strikes a balance between the needs of large- scale urbanization and individual building. It is the science and aesthetics of urbanization as it saves the development from chaos and uglification. A departure from planning may result in dis-figuration of the beauty of an upcoming city and may pose a threat for the ecological balance and environmental safeguards."
The Supreme Court in Friends Colony Development Committee v. State of Orissa and others, (2004) 8 SCC 733, while dealing with the issue of unauthorized construction made the following observations in paragraph 22:
"22. In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by Page 61 of 169 C/WPPIL/111/2013 CAV JUDGMENT way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the state. The exercise of such governmental power is justified on account of its being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable inter-meddling with the private ownership of the property may not be justified."
Thus, what is discernible from the aforesaid principles of law as explained by the Supreme Court and taking into consideration the object with which the legislature thought fit to enact the Act of 1976 makes it very clear that for a planned development the individual rights are made subordinate to the wider social interest of the society and civic amenities. The individual interests are not allowed to outweigh and prevail over the wider social interests so as to thwart or frustrate the salutary social schemes of the town planning for the benefit of the public as a whole. The Bombay Town Planning Act, 1954 was enacted to consolidate and amend the law for the making and execution of town planning schemes enjoining a duty on every local authority to prepare a development plan for the entire area within its jurisdiction. This Act of 1954 was repealed with the saving provision in Section 124 thereof. It was felt that if the planning activities were undertaken on a more rational and scientific basis with reference to Page 62 of 169 C/WPPIL/111/2013 CAV JUDGMENT development of areas which are not necessarily restricted to the areas within the jurisdiction of the local authorities, it will be possible to create better environmental conditions. Therefore, the Act of 1954 was replaced by a more comprehensive legislation.
City planning is globally recognized as a normal and identifiable function of the government. As a government function, it involves the coordination of all governmental activities that bear upon community growth and developmental change. The ultimate goals of modern urban planning have always been social with deep involvement with intermediate economic objectives. The physically oriented urban planning has the following environmental objectives :
(i) The orderly arrangement of parts of the city residential, business, industrial - so that each part could perform its functions with minimum cost and conflict;
(ii) An efficient system of circulation within the city and to the outside world, using to the maximum advantage all modes of transportation;
(iii) The development of each part of the city to optimum standards, in terms of lot size, sunlight, and green space in residential areas, and parking and building spacing in business areas;
(iv) The provision of safe, sanitary, and comfortable housing in a variety of dwelling types to meet the needs of all families;Page 63 of 169 C/WPPIL/111/2013 CAV JUDGMENT
(v) The provision of recreation, schools, and other community services of adequate size, location, and quality;
(vi) The provision of adequate and economical water supply, sewerage, utilities, and public services.
For these purposes, the devolution of powers to the cities occurs through legislative acts that delegate limited self- government to local corporations. By the Constitution (Seventy
- Fourth) Amendment Act, 1992, Parts IX & IXA were introduced in the Constitution of India entrusting the planning function to the local bodies. Article 243-W enables the legislature of a State to endow Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government with respect to;
(i) preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule. (These include, (i) Urban Planning including town planning, (ii) Regulation of land use and construction of buildings (iii) Planning for economic and social development, and (iv) Public amenities and public conveniences and other items mentioned in the Schedule.) Page 64 of 169 C/WPPIL/111/2013 CAV JUDGMENT In our opinion, the decision of the authorities in the present case in asking the land owners to set apart 40% of the area of their land while seeking development permission to facilitate planned development should not be allowed to suffer and the interest of the members of the petitioner association and other private petitioners being subordinated so as to subserve the public good as they are to be expeditiously implemented in accordance with the true legislative intention of the Act.
We are convinced by the fact that the decision of the authorities to incorporate the proposed variation in the General Development Control Regulations specifying the expected percentage of land upto 40% to be set apart by the developers while developing their lands at the stage of development plan is in the larger public interest rather than the private interest of a handful of owners of the land likely to be affected by such deduction. The only question that needs to be examined is whether there are any legal impediments coming in the way of the authorities in implementing such a decision.
Provisions of the Act :
Before we proceed to consider the rival submissions canvassed on either side, we find it appropriate to look into the few relevant provisions of the Act.
The preamble of the Act reads thus:
"An Act to consolidate and amend the law relating to the making and execution of development plans and town Page 65 of 169 C/WPPIL/111/2013 CAV JUDGMENT planning schemes in the State of Gujarat."
Section 2, clause (viii) defines "development". It reads as under:
"(viii) "development", with all its grammatical variations and cognate expressions, means the carrying out of any building, engineering, mining, or other operations in, or over, or under land or the making of any material change in any building or land or in the use of any building or land, and includes layout and sub-division of any land;"
Section 2, clause (x) defines "development plan". It reads as under:
"(x) "development plan" means a plan for the development or re-development or improvement of a development area;"
Section 7 provides for the powers and functions of the Area Development Authority. Section 7 (1) (iv) reads as under:
"Section 7 : Powers and functions of area development authority (1) [The powers and functions of] an area development authority shall be-
..................
(iv) to control the development activities in accordance with the development plan in the development area;"
Section 9 provides for "development plan". It reads as under:
"Section 9 : Development plan Page 66 of 169 C/WPPIL/111/2013 CAV JUDGMENT (1) As soon as may be after the constitution of an area development authority for any development area under section 5 [or designation of a local authority as the area development authority under sub-section (1) of Section 6], the area development authority shall, not later than three years after the declaration of such area as a development area or within such time as the State Government may, from time to time, extend, prepare and submit to the State Government a draft development plan for the whole or any part of the development area in accordance with the provisions of this Acts.
(2) If a draft development plan is not prepared and submitted to the State Government by any area development authority within the period specified in sub-
section (1) or within the period extended under that sub- section, on officer appointed by the State Government in this behalf may prepare and submit to the State Government in the prescribed manner a draft development plan and recover the cost thereof from such area development authority out of its funds."
Section 12 provides for the contents of the Draft Development Plan. It reads thus:
"Section 12 : Contents of draft development plan (1) A draft development plan shall generally indicate the manner in which the use of land in the area covered by it shall be regulated and also indicate the manner in which the development therein shall be carried out.
(2) In particular, it shall provide, so far as may be necessary, for all or any of the following matters, namely :-
(a) proposals for designating the use of the land for residential, industrial, commercial, agricultural and recreational purposes;
(b) Proposals for the reservation of land for public purposes, such as schools, colleges and other educational institutions, medical and public health Page 67 of 169 C/WPPIL/111/2013 CAV JUDGMENT institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, public assembly, museums, art galleries, religious buildings play, grounds, stadia, open spaces, dairies and form such other purposes as may, for time to time, be specified by the State Government;
(c) proposals for designation of areas for zoological gardens, green belts, natural reserves and sanctuaries;
(d) transport and communications, such as roads, highways, parkways, railways, waterways, canals and airports, including their extension and development;
(e) proposals for water supply, drainage, sewage disposal, other public utility amenities and services including supply of electricity and gas;
(f) reservation of land for community facilities and services;
(g) proposals for designation of sites for service industries, industrial estates and any other industrial development on an extensive scale;
(h) preservation, conservation and development of areas of natural scenery and landscape;
(i) preservation of features, structures of places of historical, natural architectural or scientific interest and of educational value;
(j) proposals for food control and prevention of river pollution;
(k) proposals for the reservation of land for the purpose of Union, any State, local authority or any other authority or body established by or under any law for the time being in force.
(l) the filling up or reclamation of low laying, swampy or unhealthy areas or leveling up of land;Page 68 of 169 C/WPPIL/111/2013 CAV JUDGMENT
(m) provision for controlling and regulating the use and development of land within the development area, including imposition of conditions and restrictions in regard to the open space to be maintained for buildings, the percentage of building area for a plot, the location, number, size, height, number of storeys and character of buildings and density of built up area allowed in specified area, the use and purposes to which a building or specified areas of land may or may not be appropriated, the sub-divisions of plots, the discontinuance of objectionable uses of land in any area in any specified periods, parking spaces, loading and unloading space for any building and the sizes of projections and advertisement signs and hoardings and other matters as may be considered necessary for carrying out the objects of this Act;
(n) provision for preventing or removing pollution of water or air caused by the discharge of waste or other means as a result of the use of land;
(o) such other proposals for public or other purposes as may from time to time be approved by the area development authority or as may be directed by the State Government in this behalf."
Section 13 provides for publication of draft development plan. It reads as under:
"Section 13 : Publication of draft development plan (1) The area development authority or, as the case may be, the authorized officer shall, as soon as may be, after a draft development plan is prepared and submitted to the State Government under section 9, publish it in the official Gazette and in such other manner as may be prescribed along with a notice in the prescribed manner, inviting suggestions or objections from any person with respect to the development plan within a period of two months from the date of its publication.Page 69 of 169 C/WPPIL/111/2013 CAV JUDGMENT
(2) The following particulars shall be published along with the draft development plan, namely:-
(a) A statement indicating broadly the uses to which lands in the area covered by the plan are proposed to be put and any survey carried out for the preparation of the draft development plan;
(b) maps, chart and statements explaining the provisions of the draft development plan;
(c) the draft regulations for enforcing the provisions of the draft development plan;
(d) procedure explaining the manner in which permission for developing any land may be obtained from the area development authority or, as the case may be, the authorized officer;
(e) a statement of the stage of development by which it is proposed to meet any obligation imposed on the area development authority by the draft development plan;
(f) an approximate estimate of the cost involved in acquisition of land reserved for public purposes."
Section 17 provides for the power of the State Government to sanction the Draft Development Plan. It reads thus:
"Section 17: Power of State Government to sanction draft development plan (1) ..........
(2) Where the draft development plan submitted by an area development authority or, as the case may be, the authorized officer contains any proposals for the reservation of any land for a purpose specified in clause
(b) or clause (n) or clause (o) of sub-section (2) of section 12 and such land does not vest in the area development Page 70 of 169 C/WPPIL/111/2013 CAV JUDGMENT authority, the State Government shall not include the said reservation in the development plan, unless it is satisfied that such authority would acquire the land, whether by agreement or compulsory acquisition, within ten years from the date on which the final development plan comes into force."
Section 19 provides for variation in final development plan, which reads as under:
"Section 19 : Variation of final development plan (1) If on a proposal from an area development authority in that behalf or otherwise, the State Government is of opinion that it is necessary in the public interest to make any variation in the final development plan (hereinafter referred to as variation), it shall publish in the official gazette,
(a) the variation proposed in the final development plan,
(b) the amendments, if any, in the regulation, and
(c) the approximate cost, if any, involved in the acquisition of land, which by virtue of the variation would be reserved for a public purpose, along with a notice, inviting suggestions or objections from any person with respect to the variation within a period of two months from the date of publication of the variation.
(2) After considering the suggestions or objections, if any, received under sub-section (1) within the period specified therein and after consulting the area development authority in a case where the variation is not proposed by that authority, the State Government may, by notification, sanction the variation with or without modifications, as it may consider fit to do and such variation shall come into force on such date as may be specified in the notification.
(3) From the date of coming into force of the variation, the provisions of this Act shall apply to such variation, as Page 71 of 169 C/WPPIL/111/2013 CAV JUDGMENT they apply to final development plan.
(4) If any person who is affected by such variation has incurred any expenditure in complying with the final development plan as it existed before such variation, such person shall be entitled to receive compensation,-
(i) where the variation is made on the proposal of an area development authority, from the authority, and
(ii) in any other case, from the State Government, if such expenditure is rendered abortive by reason of the variation of the plan."
Section 20 relates to acquisition of land, which reads as under:
"Section 20 : Acquisition of land (1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of sub-section (2) of section 12 , may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894 (1 of 1894).
(2) If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894 (1 of 1894) are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of the land as aforesaid shall be deemed to have lapsed."Page 72 of 169 C/WPPIL/111/2013 CAV JUDGMENT
Section 119 provides for the power to make regulations. It reads as under:
"Section 119 : Power to make regulations (1) An appropriate authority may, with the previous approval of the State Government make regulations consistent with this Act and the rules made hereunder, to carry out the purposes of the development plan and of the town planning scheme and for regulating its procedure and conduct of business.
(2) In particular, and without prejudice to the generality of the foregoing power such authority may make-
(a) regulations subject to which it shall exercise its powers and perform its functions under this Act;
(b) regulations providing for the delegation of its powers and functions to its Chairman, vice-
Chairman, member-secretary or any of its officers;
(c) regulations for regulating its procedure and the conduct of its business at its meetings;
(ci) regulations prescribing fees to be levied and collected under clause (iv-a) of sub-section (1) of Section 7 ;
(cii) regulations prescribing fees to believed and collected under clause (vii-a) of sub-section (1) of Section 7 ;
(ciii) regulations prescribing fees to be levied and collected under clause (v-a) of sub-section (1) of Section 23 ;";
(c-iv) regulations prescribing fees to be levied and collected under clause (vi-a) of sub-section (1) of Section 23 ;";
(c-v) regulations prescribing scrutiny fees under Section 27 or, as the case may be, sub-section (1) of Section 28;
Page 73 of 169 C/WPPIL/111/2013 CAV JUDGMENT(d) regulations prescribing the manner in which its order under sub-section (1) of section 29 shall be communicated to the applicant seeking permission under that section;
(e) regulations prescribing the time within which and the manner in which a purchase notice shall be served on the appropriate authority under sub- section (1) of section 31;
(e-i) regulations prescribing scrutiny fees under sub-section (1) of Section 34 or, as the case may be, clause (a) of sub-section (1) of Section 49 ;";
(f) regulations providing for any other matter which has to be or may be prescribed by regulations."
From the aforesaid provisions of law it is clear that Section 119 of the Act confers the powers on the appropriate authority to frame regulations with the previous sanction of the State Government. Similarly, the regulations framed in exercise of the powers conferred under Section 12, clause (m) of the Act are known as "General Development Control Regulations" and by virtue of the provisions of Section 13 (2), the same are part of the development plan.
It is a well established position of law that the development plan is a matter of macro planning, whereas preparation of the town planning scheme is a matter of micro planning. Section 12 deals with contents of "draft development plan" whereas Section 40 deals with making and contents of a town planning scheme.
Under sub-section (1) of Section 12 of the Act wide powers are prescribed, inter alia, for regulating development of Page 74 of 169 C/WPPIL/111/2013 CAV JUDGMENT the area by providing different designations or reservations. Under clause (b) of sub-section (2) of Section 12 of the Act, a proposal indicating the manner in which the use of the land in the area shall be regulated, can be made for reservation of land for the public purpose such as schools, colleges and other educations institutions, medical and public health institutions, markets, social welfare and cultural institutions etc. Under clause (c) of sub-section (2) of Section 12 of the Act, the proposal can be made for designation of areas dealing with gardens, green belts, natural reserves and sanctuaries.
We find merit in the submission canvassed on behalf of the respondents that when a proposal is made under clause (b) of sub-section (2) of Section 12 or under clause (c) of sub- section (2) of Section 12, the same is for reservation or designation of the entire land i.e. 100% earmarked for the purpose mentioned therein, to be acquired fully as prescribed under Section 20 of the Act. clause (b) of sub-section (2) of Section 12 provides for institutional reservation, where necessary finance is to be arranged by the authority concerned for acquisition thereof under the law relating to the land acquisition, within a period of ten years from the date of coming into force of the final development plan.
We are of the view that the clauses (a) to (l) and (n) and
(o) of sub-section (2) of Section 12 of the Act are the proposals for reservation or designation and not the provision, which is, in fact, provided by clause (m). To put it in other words, clause
(m) of sub-section (2) of Section 12 provides the source of power.
Page 75 of 169 C/WPPIL/111/2013 CAV JUDGMENTIn our opinion, the clause (m) of sub-section (2) of Section 12 of the Act could be read in three parts.
(i) to control and regulate the use of development of land within the development area,
(ii) to impose conditions and restrictions in regard to the open space to be mentioned for buildings and
(iii) to provide for other matters as may be considered necessary for carrying out the objects of the Act.
In our opinion, the words "carrying out the objects of the Act" should be interpreted in the widest possible manner and the proposed new regulation framed with the intention to achieve the object of the Act cannot be termed to be without any authority in law.
Principle of Ejusdem Generis :
At this stage, we propose to deal with the vociferous submission canvassed by Mr.M.C.Bhatt, the learned counsel appearing for the petitioners of Writ Petition (PIL) No.111 of 2013 that the words "and other matters as may be considered necessary for carrying out the objects of this Act" should be read by applying the principle of ejusdem generis. According to Mr.Bhatt, other matters would only include the matters enumerated in Section 12, clause (m) i.e. the conditions and restrictions relating to the buildings and nothing beyond the same. According to Mr.Bhatt, the phrase "and other matters"
should not be construed to include the power to frame a regulation making it mandatory for the owner of the land to set Page 76 of 169 C/WPPIL/111/2013 CAV JUDGMENT apart 40% of his land while seeking development permission from the authorities.
We are afraid we are not impressed by the submission of Mr.Bhatt so far as the application of the principle of ejusdem generis is concerned.
The maxim of noscitur a sociis is a well-known rule of construction limiting the ambit of a word of wider import used in the statute by interpreting it in the light of other words in the company of which it occurs.
The principal rule of ejusdem generis is one of the species of wider rule noscitur a sociis and is an application of the maxim. According to Maxwell this rule means that when two or more words which are susceptible of analogous meaning are coupled together; they are understood to be used in the cognate sense. They take as it were their colour from each other that is the more general is restricted to a sense analogous to a less general.
In Words and Phrases maxim has been thus explained:
"Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of the doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim ejusdem generis."
The above rule was explained in State of Bombay v. Hind Mazdoor Sabha, AIR 1960 SC 610. Gajendragadkar, J. speaking Page 77 of 169 C/WPPIL/111/2013 CAV JUDGMENT for the Court with a word of caution said:
"In fact latter maxim (ejusdem generis) is only an illustration or specific application of the broader maxim noscitur a sociis. It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful or otherwise not clear that the present rule of construction can be usefully applied."
In order to apply rule for restricting the broad meaning which the word used by the Legislature otherwise conveys in general, there must be a distinct genus. It must accompany more than one specie of same genus for application of the rule. The enumerated things before the general words must constitute a category or a genus or a family of which there must be a number of species or members.
The principle that mentioning of one single specie cannot give rise to application of maxim of ejusdem generis has been well accepted.
In United Towns Electric Co. Ltd. v. Attorney General for Newfoundland, reported in 1939 (2) All ER 423, the one expression used was for 'water rates' and other expression was taxation. Lord Thankerton opined negativing applicability of ejusdem generis rule.
"There is no room for the application of the principle ejusdem generis in the absence of any mention of a Page 78 of 169 C/WPPIL/111/2013 CAV JUDGMENT genus, since the mention of a single species - for example, water rates - does not constitute a genus...."
It was said in the case of State of Bombay v. Ali Gulshan, AIR 1955 SC 810, that where the word used by the Legislature does not form a genus to which number of species fall but, uses the word as a specie then mention of a single specie cannot constitute a genus so as to invoke the application of ejusdem generis.
The principle stems from the reason that if a single word has been used as a specie without enumeration of other kinds of specie falling in the same genus, the question of applying the rule of ejusdem generis to the general expression used by the Legislature would not arise so as to control and confine it as belonging to the same family. One member of a family by itself does not make the family. If two words used, with reference to which the rule of construction noscitur a sociis is to be considered, are of general character the principle would still not apply. If one expression is exhaustive of the meaning falling in its broader sense, there will not be any requirement of any further expression to wider or limit the scope of one expression and latter expression would be mere surplus. A construction which renders any expression of legislature as mere surplus has to be avoided.
In Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., AIR 1964 SC 1882, construing provisions of Section 69 (3) of the Partnership Act, the Supreme Court held that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general Page 79 of 169 C/WPPIL/111/2013 CAV JUDGMENT words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted.
Thus, it can be said to be well settled that where a word is a single specie of a genus, then the word following with expression of general character cannot be restricted in their meaning with reference to the nature of such single preceding expression.
As observed earlier, Section 12, clause (2), sub-clause
(m) could be divided in three parts. The first part deals with the provision for controlling and regulating the use and development of land within the development area; the second part includes imposition of conditions and restrictions in regard to open space to be maintained for buildings etc. and the third part begins with the expression "and other" which envisages a different category which may be found necessary for carrying out the objects of the Act. Here "and" is disjunctive. So, while construing such a definition the principle of ejusdem generis cannot be applied. Moreover, where there is a different legislative intent, as in this case, the principle of ejusdem generis cannot be applied to make a part of the provision completely redundant.
In the aforesaid context, we may quote with profit, a recent pronouncement of the Supreme Court in Maharashtra University of Health Sciences and Others v. Satchikitsa Prasarak Mandal and others, AIR 2010 SC 1325. In that case, the Supreme Court considered the principle of ejusdem Page 80 of 169 C/WPPIL/111/2013 CAV JUDGMENT generis at length. The observations made by the Supreme Court are worth noting.
"26. The Latin expression "ejusdem generis" which means "of the same kind or nature" is a principle of construction, meaning thereby when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of restricted words. This is a principle which arises "from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context." It may be regarded as an instance of ellipsis, or reliance on implication. This principle is presumed to apply unless there is some contrary indication (See Glanville Williams, The Origins and Logical Implications of the Ejusdem Generis Rule' 7 Conv (NS)
119).
27. This ejusdem generis principle is a facet of the principle of Noscitur a sociis. The Latin maxim Noscitur a sociis contemplates that a statutory term is recognized by its associated words. The Latin word `sociis' means `society'. Therefore, when general words are juxtaposed with specific words, general words cannot be read in isolation. Their colour and their contents are to be derived from their context [See similar observations of Viscount Simonds in Attorney General v. Prince Ernest Augustus of Hanover, (1957) AC 436 at 461 of the report]
28. But like all other linguistic canons of construction, the ejusdem generis principle applies only when a contrary intention does not appear. In instant case, a contrary intention is clearly indicated inasmuch as the definition of `teachers' under Section 2(35) of the said Act, as pointed out above, is in two parts. The first part deals with enumerated categories but the second part which begins by the expression "and other" envisages a different category of persons. Here `and' is disjunctive.
So, while construing such a definition the principle of ejusdem generis cannot be applied.
29. In this context, we should do well to remember the caution sounded by Lord Scarman in Quazi v. Quazi -
Page 81 of 169 C/WPPIL/111/2013 CAV JUDGMENT[(1979) 3 All-England Reports 897]. At page 916 of the report, the learned Law Lord made this pertinent observation:-
"If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it; the rule is helpful. But, if it is not, the rule is more likely to defeat than to fulfill the purpose of the statute. The rule, like many other rules of statutory interpretation, is a useful servant but a bad master."
30. This Court while construing the principle of ejusdem generis laid down similar principles in the case of K.K. Kochuni v. State of Madras and Kerala, [AIR 1960 SC 1080]. A Constitution Bench of this Court in Kochuni (supra) speaking through Justice Subba Rao (as His Lordship then was) at paragraph 50 at page 1103 of the report opined:-
"...The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary."
(Emphasis supplied)
31. Again this Court in another Constitution Bench decision in the case of Amar Chandra Chakraborty v. The Collector of Excise, Govt. of Tripura, Agartala and others, AIR 1972 SC 1863, speaking through Justice Dua, reiterated the same principles in paragraph 9, at page 1868 of the report. On the principle of ejusdem generis, the learned Judge observed as follows:-
"...The ejusdem generis rule strives to reconcile the incompatibility between specific and general words. This doctrine applies when (i) the statute contains an enumeration of specific words; (ii) the subjects of the enumeration constitute a class or category; (iii) that class or category is not Page 82 of 169 C/WPPIL/111/2013 CAV JUDGMENT exhausted by the enumeration; (iv) the general term follows the enumeration; and (v) there is no indication of a different legislative intent."
(Emphasis supplied)
32. As noted above, in the instant case, there is a statutory indication to the contrary. Therefore, where there is statutory indication to the contrary the definition of teacher under Section 2(35) cannot be read on the basis of ejusdem generis nor can the definition be confined to only approved teachers. If that is done, then a substantial part of the definition under Section 2 (35) would become redundant. That is against the very essence of the doctrine ejusdem generis. The purpose of this doctrine is to reconcile any incompatibility between specific and general words so that all words in a Statute can be given effect and no word becomes superfluous (See Sutherland: Statutory Construction, 5 th Edition, page 189, Volume 2A).
33. It is also one of the cardinal canons of construction that no Statute can be interpreted in such a way as to render a part of it otiose.
34. It is, therefore, clear where there is a different legislative intent, as in this case, the principle of ejusdem generis cannot be applied to make a part of the definition completely redundant.
35. By giving such a narrow and truncated interpretation of `teachers' under Section 2 (35), High court has not only ignored a part of Section 2 (35) but it has also unfortunately given an interpretation which is incompatible with the avowed purpose of Section 53 of the Act.
36. The purpose of setting up the Grievance Committee under Section 53 of the Act is to provide an effective grievance redressal forum to teachers and other employees. Any interpretation of `teachers' under Section 2 (35) of the Act which denies the persons covered under Section 2 (35) an access to the said forum completely nullifies the dominant purpose of creating such a forum. It goes without saying that unapproved teachers need the protection of this forum more than the Page 83 of 169 C/WPPIL/111/2013 CAV JUDGMENT approved teachers. By creating such a forum the University virtually exercised its authority and jurisdiction as a loco-parentis over teachers-both approved and unapproved and who are working in various colleges affiliated with it. The idea is to give such teachers and employees a protection against any kind of harassment which they might receive in their work place. The creation of such a forum is in tune with protecting the 'dignity of the individual' which is one of the core constitutional concepts.
37. Therefore, the doctrine of ejusdem generis cannot be pressed into service to defeat this dominant statutory purpose. In this context we may usefully recall the observations of the Supreme Court of United States in Guy T. Helvering v. Stockholms Enskilda Bank, 293 US 84, 88-89, 79 L Ed 211, 55 S Ct 50, 52 (1934), as under:-
"while the rule is a well-established and useful one, it is, like other canons of statutory construction, only an aid to the ascertainment of the true meaning of the statute. It is neither final nor exclusive. To ascertain the meaning of the words of a statute, they may be submitted to the test of all appropriate canons of statutory construction, of which the rule of ejusdem generis is only one. If, upon a consideration of the context and the objects sought to be attained and of the act as a whole, it adequately appears that the general words were not used in the restricted sense suggested by the rule, we must give effect to the conclusion afforded by the wider view in order that the will of the Legislature shall not fail."
We may also quote with profit the observations made by the Supreme Court in M/s.Grasim Industries Limited v. Collector of Customs, AIR 2002 SC 1706.
"The rule of ejusdem generis is applicable when particular words pertaining to a class, category or genus are followed by general words. In such a case the general words are construed as limited to things of the Page 84 of 169 C/WPPIL/111/2013 CAV JUDGMENT same kind as those specified. The rule reflects an attempt to reconcile incompatibility between the specific and general words in view of the other rules of interpretation that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute are presumed to be superfluous. The rule applies only when (1) the statute enumerates the specific words, (2) the subjects of enumeration constitute a class or category, (3) that class or category is not exhausted by the enumeration, (4) the general terms follow the enumeration and (5) there is no indication of a different legislative intent. If the subjects of enumeration belong to a broad based genus, as also to a narrower genus there is no principle that the general words should be confined to the narrower genus. The Note 1 (a) of Ch.84 is clear and unambiguous. It does not speak of a class, category or genus followed by general words. The rule of ejusdem generis has, therefore, no application."
Thus, having regard to the specific language mentioned in Section 12, sub-section (2), clause (m) and the legislative intent, it would be mis-application of the doctrine of ejusdem generis to hold that the words "and other matters" following the specified categories referred only to matters similar in their nature to the enumerated topics.
One salutary rule of statutory interpretation founded on the principle of assumed intention of the law maker is that the general words although when they stand by themselves are to be accorded their full and ordinary meaning yet they must when they follow particular and specific words be confined to embrace things of the same kind as those before enumerated. This aid to statutory interpretation is the well established principle of ejusdem generis. The fixation of the meaning of such final general words presents little difficulty when they follow a series of specific words and restrictive effect is given Page 85 of 169 C/WPPIL/111/2013 CAV JUDGMENT to them limiting their operation to the company in which they find place.
Valid only by virtue of form the doctrine of ejusdem generis is a dubious yard stick. It has therefore to be applied with restraint and having regard to the fitness of the matter. It must not be pushed too far for after all it is one of numerous rules of construction. Its operation is presumptive and not peremptory. The context of the statute must never be lost sight of for to ignore the context would make the intention of the Legislature subordinate to the doctrine.
For the selfsame reason, we also reject the contention of Mr.Bhatt that Section 119(f) of the TP Act must be read and interpreted keeping in view the principle of ejusdem generis.
Mr.Bhatt, in support of his submission as regards applicability of the principle of ejusdem generis has placed strong reliance on two decisions of the Supreme Court, (i) Sri Ram Ram Narayan Medhi (supra) and (ii) Amarchandra Chakraborty (supra).
We have gone through both the decisions relied upon by Mr.Bhatt in support of his contention but we are afraid both the decisions are of no assistance to the client of Mr.Bhatt.
In Sri Ram Ram Narayan Medhi (supra) the facts of the case were that six petitions under Article 32 of the Constitution of India were filed challenging the vires of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956. The Supreme Court, after an elaborate discussion of the matter, Page 86 of 169 C/WPPIL/111/2013 CAV JUDGMENT came to the conclusion that the impugned Act was covered by Article 31-A of the Constitution of India and the same was protected from attack against its constitutionality on the score of its having violated the fundamental rights, enshrined in Articles 14, 19 and 31 of the Constitution of India. In that case, it was contended before the Supreme Court that Section 7 of the Act which deals with the power of the Government to vary ceiling area and economic holding did not fix any criteria for the guidance of the State Government and that the power which was given to the State Government to vary the ceiling area and economic holding was unguided and unfettered and that it was possible to exercise it at the sweet will and discretion of the State Government, even in favour of a single individual or in favour of political sufferers and the like. It was also urged before the Supreme Court that there was no broad principle or policy enunciated by the legislature in that behalf and it would be open to the State Government to exercise that power arbitrarily and even in a discriminatory manner and that such entrustment of power to the State Government would amount to excessive delegation of legislative power and Section 7 therefor must be held to be void. As Mr.Bhatt is relying on the principle of ejusdem generis, as discussed by the Supreme Court, while distinguishing this judgment we find it necessary to quote Section 7 of the Bombay Tenancy and Agricultural Lands Act with which the Supreme Court was dealing with.
"7. Power of Government to vary ceiling area and economic holding.
Notwithstanding anything contained in sections 5 and 6, it shall be lawful for the State Government, if it is Page 87 of 169 C/WPPIL/111/2013 CAV JUDGMENT satisfied that it is expedient so to do in the public interest, to vary, by notification in the Official Gazette, the acreage of the ceiling area or economic holding, or the basis of determination of such ceiling area or economic holding under sub-section (2) of section 5, regard being had to-
(a) the situation of the land.
(b) its productive capacity,
(c) the fact that the land is located in a backward area,
and
(d) any other factors which may be prescribed:"
As could be seen that it would be lawful for the State Government to vary by notification in the official gazette the acreage of the ceiling area or economic holding on the basis of the determination of such ceiling area or economic holding under sub-section (2) of Section 5 taking into consideration the matters enumerated in (a), (b), (c) and (d). clause (d) reads, "any other factors which may be prescribed".
The submission before the Supreme Court was that the provision of Section 7 could be easily misused because of clause (d) which read, "any other factors which may be prescribed" and any other factors would suggest that the authority could use this provision arbitrarily and even in a discriminatory manner. While repelling such contention, the Supreme Court held that the State Government was to be guided in arriving at its satisfaction in regard to expediency thereof by (a) the situation of the land, (b) its productive capacity, (c) the fact that the land is located in a backward area, (d) any other factors which may be prescribed. The Supreme Court held that insofar as the situation of the land and its productive capacity were variable factors, were so if Page 88 of 169 C/WPPIL/111/2013 CAV JUDGMENT the land was located in a backward area, the State Government was enjoined to have regard to those factors as determining the variations one way or the other from the normal standard adopted by the legislature in Sections 5 and 6 of the Act. The Court held that "any other factors which may be prescribed" would be factors ejusdem generis to the factor mentioned earlier in the Section and could not be any and every factor which crossed the mind of the executive. The Court further held that the very terms of Section precluded any single individual being treated in that manner because it talked of the variation in the ceiling area and the economic holding being considered by the State Government to be expedient in the public interest and the satisfaction of any individual interest would hardly be said to be a matter of public interest. Thus, the decision of the Supreme Court, referred to above, on which strong reliance has been placed by Mr.Bhatt is of no assistance to the petitioners in any manner so far as the principle of ejusdem generis is concerned. In the facts of that case and keeping in mind the legislative intent and other aspects of the matter, the Supreme Court thought fit to apply the principle of ejusdem generis.
So far as even the second decision is concerned, viz. Amar Chandra Chakraborty (supra), it does not help the petitioners in any manner. In the said decision, the Supreme Court has explained the scope and extent of the principle of ejusdem generis stating that the rule strives to reconcile the incompatibility between specific and general words. This doctrine applies when (i) the statute contains an enumeration of specific words; (ii) the subject of the enumeration constitutes a class or category; (iii) that class or category is not Page 89 of 169 C/WPPIL/111/2013 CAV JUDGMENT exhausted by the enumeration; (iv) the general term follows the enumeration and (v) there is no indication of a different legislative intent. So far as these principles are concerned, there cannot be any dispute regarding the same. However, in the said case, the Supreme Court had rejected the contention canvassed on behalf of the appellant for application of the ejusdem generis rule in the facts of that case. The Supreme Court was dealing with a matter under the Bengal Excise Act (5 of 1909). Section 42 of the Act provided for the power to cancel or suspend licence, permit or pass. Section 42, sub- section (1), clauses (a) to (g) laid down the factors on which the power could be exercised. On the other hand, Section 43 spoke about power to withdraw licence. Section43 stated that whenever the authority who granted any licence under this Act considered that the license should be withdrawn for any cause other than those specified in Section 42, it shall remit a sum equal to the amount of fees payable in respect thereof for 15 days and may withdraw the licence. The argument was that the words "for any cause other than those specified in Section 42" should be read as ejusdem generis. Such contention was negatived by the Supreme Court, holding that the very language of the two Sections i.e. Section 42 and Section 43 and the objects intended respectively to be achieved by them also negatived any intention of the legislature to attract the rule of ejusdem generis.
When a final notification under sub-section (2) of Section 19 of the Act is issued, after considering the suggestions or objections, if any, received in response to the impugned notification dated 21st March 2013, for sanctioning the modification in the GDCR, it would become a matter provided Page 90 of 169 C/WPPIL/111/2013 CAV JUDGMENT under clause (m) of sub-section (2) of Section 12, as included in the notified development plan. What the aforesaid notification provides is a proposal to vary the development plan after amending the GDCR by specifying the expected percentage of land to be set apart, which ultimately can be allotted by the area development authority in a development plan, so as to facilitate better and effective implementation of the town planning scheme at a future date.
Section 40 of the Act speaks of making and contents of a Town Planning Scheme. By virtue of this Section the appropriate authority is empowered to make one or more Town Planning Schemes for the development area or any part thereof, regard being had to the proposals in the final development plan, if any. The words "if any" are of much significance. It necessarily implies that even in absence of a development plan, a Town Planning Scheme can be made. Further clause (3) of Section 40 states that a Town Planning Scheme may make provision for any of the following matters as stated in clauses (a) to (m). clause (jj) (a) of sub-section (3) of Section 40 specifies that the allotment of the land to the extent of 15% for roads, 5% for parks, playgrounds, gardens and open space, 5% for social infrastructure such as schools, dispensary, fire brigade, public utility place as earmarked in the Draft Town Planning Scheme and 15% for sale by appropriate authority for residential, commercial or industrial use depending upon the nature of development. We are of the view that the concept of specification of expected percentage of land to be provided for at the time of preparing Town Planning Scheme as prescribed under clause (jj) (a) of sub- section (3) of Section 40 of the Act can very well be imported Page 91 of 169 C/WPPIL/111/2013 CAV JUDGMENT while preparing a development plan. In the case at hand the development plan has already been sanctioned on 18 th January 2012 by the State Government and for the purposes of adopting the aforesaid concept applicable in case of the Town Planning Scheme the recourse could be had to the enabling provision contained in clause (m) of sub-section (2) of Section 12, by taking aid of the provisions of Section 19 the Act.
Our attention has been drawn by Mr.Trivedi, the learned Advocate General appearing for the State to the decision of the Division Bench of this Court in Ahmedabad Green Belt Khedut Mandal v. State of Gujarat, 2001(1) GLR 888, wherein this Court upheld the constitutional validity of Section 40(3)(jj) (a) of the Act. Mr.Trivedi has placed reliance on the observations made by the Court in paragraphs 9 to 12, 18 and 36 to 39, which are reproduced hereunder:
"9. Some other ancillary points urged on behalf of the petitioners by one of the counsel arguing for them also deserve to be noted. It is pointed out that under the parent Act, Section 40(3)(j) as it original stood merely provided for only 10% of the land to be reserved in the town planning scheme for providing housing accommodation to members of the weaker sections. That provision contained in clause (j) is still on the statute book. As mentioned above, clause (jj) was introduced by Gujarat Act No. 4 of 1986. After its introduction, the two clauses (j) and (jj) as stood prior to their substitution by (jj)(a)(i) to (v), (b) and (c) read as under:-
"40(3) A town planning scheme may make provision for any of the following matters, namely:-
(a) to (i) xx xx xx xx xx xx
(j) the reservation of land to the extent of ten per cent; or such percentage as near thereto as Page 92 of 169 C/WPPIL/111/2013 CAV JUDGMENT possible of the total area covered under the scheme, for the purpose of providing housing accommodation to the members of weaker sections and of buildings actually used for religious purposes;
(jj)the allotment of land to the extent of ten per cent, or such percentage as near thereto as possible of the total area covered under the scheme, for the purpose of sale for residential, commercial or industrial use;
10. As quoted above, prior to the impugned amendment and substitution of clause (jj)(a) to subsection (3) of Section 40 the Appropriate Authorities were permitted at the time of framing town planning scheme to reserve land total to the extent of 20%, i.e., 10% for housing accommodation for weaker sections and 10% for the purpose of sale. The sale of plots was not permitted to be made by the Appropriate Authority in the unamended clause (jj)(a), may be, the sale of the plots in contemplation was through the land owners under the scheme.
11. The learned counsel appearing in Special Civil Application No. 4271 of 2000 has urged an additional ground that the State Government in these petitions has not shown any justification in their reply affidavit for increasing the percentage of reservation of lands for public use from 20% to 50%. The percentage of reservation now provided under the town planning scheme is as under:
10% for weaker sections - (j) 15% for roads - (jj)(a)(i) 5% for park, playgrounds, gardens and open spaces - (jj) (a)(ii) 5% for social infrastructure such as schools, dispensary,
fire brigade, public utility places as earmarked in draft town planning scheme - (jj)(a)(iii) 15% for sale by appropriate authority for residential Page 93 of 169 C/WPPIL/111/2013 CAV JUDGMENT accommodation, commercial and industrial use - (jj) ==== 50% Total ====
12. It is submitted that the State has not been able to justify in its reply affidavit the increase of percentage of reservation to the extent of 50%. The reservation of land for the town planning scheme to the extent of 50% is, therefore, arbitrary, unreasonable and violative of Article 14 of the Constitution of India. It is submitted that such high percentage of reservation is liable to be struck down on the ground that reservation whatsoever made in the development plan has lapsed under Section 20 of the Act because of non-acquisition of the land by agreement or on payment of compensation under acquisition Act to the land owners.
18. In the case of Maneklal Chhotalal (supra), the Entry 20 has been construed in the light of the activities involved in town and country planning, as understood generally by those in Local Authorities dealing with systematic development and urban and rural areas. The law of town planning aims at fulfilling social and economic objectives. City Planning takes effect largely through operations of Government and requires the application of specialized techniques of survey, analysis, forecast and design. It is in the light of the scope of the aforementioned Entries that we have to consider whether the impugned legislation is within the competence of State Legislature. As has been held by the Supreme Court in the case of Maneklal Chhotalal (supra) Entry 18 of List II and Entry 20 of List III as `Heads of' legislation has to be given widest possible meaning. In Chapter V of the parent Act provisions are made for preparation and implementation of town planning schemes. Under Section 40(3)(c) and (e) a town planning scheme is required to include amongst others the matters mentioned therein, i.e.,lay out of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications; the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets, green-belts, dairies, transport facilities, and public purposes of all Page 94 of 169 C/WPPIL/111/2013 CAV JUDGMENT kinds. The original clause (jj), as was inserted by Gujarat Act of 1986, contained a provision for allotment of 10% of land in the scheme or such percentage as near thereto as possible for the purpose of sale for residential, commercial and industrial use. By substituting the impugned provision, i.e., clause (jj)(a)(i) to (iv), there is merely specification of expected percentage of land to be reserved for various purposes already mentioned in the parent Act in subsection (3) clause (c) and (e) (quoted above). In the clauses (c) and (e) of subsection (3) matters which are to be included in the town planning scheme did not contain the expected percentage of land to be allotted for various purposes for public use. What clause (jj)(a)(i) to (iv) provides is to specify the expected percentages of land which can be allotted in the scheme for various public purposes, like roads, parks, play grounds, gardens, schools, dispensary and other purposes. The most serious objection taken is to sub- clause (iv) of clause (jj)(a)(iv) which permits 15% of land to be reserved for sale by Appropriate Authority for residential commercial and industrial use.
36. This is our conclusion on the interpretation of Sections 20 and 40. It is supportable on the over all scheme of the parent Act and the various chapters and sections discussed above. But this interpretation, as placed by us, on the provisions of the Act, does not in any manner, render clause (jj)(a) of subsection (3) of Section 40 an invalid piece of legislation. clause (jj)(a) mentioned above can validly operate in respect of land not covered by Section 20(2) of the parent Act.
IV. CHALLENGE TO VALIDITY OF SECTION 40(3)(jj)(a)(iv)
37. Before concluding one of the grounds or on the question of validity of sub-clause (iv) of clause (jj)(a) of sub-section 3 of Section 40 also requires to be decided. As has been stated above, the said sub-clause (iv) permits the Authority to reserve 15% of land to be utilized for sale by the Authority for residential, commercial or industrial use.
38. In the earlier paras of our judgment, we had already pointed out that clauses (c)(e)(f)(g)(h) contain provisions enabling the authorities to make provisions in the Town Planning Scheme for various public facilities like roads, Page 95 of 169 C/WPPIL/111/2013 CAV JUDGMENT open spaces, gardens, recreation grounds, school, market, water supply, lighting, drainage etc. What the impugned clause jj(a) has done is to provide definite percentage as outer limits for reservation of land for various public purpose and facilities. sub-clauses i to iv of clause jj(a) contain different percentages for reservation of land for public purposes. We have also pointed out that original clauses (jj) which was introduced by Gujarat Amendment No.4 of 1986 and is now substituted for jj(a) by impugned Act No.2 of 1999 had made a provision for allotment of 10% of land or such percentage as nearly thereto as possible for the purpose of sale for residential, commercial or industrial use. By the impugned substituted jj(a)(iv), the Legislature has merely clarified that the said reserved land will be utilized for sale by Appropriate Authority. The proviso thereunder read with clause (b) of clause jj(a) contains the legislative intent for reservation of 15% of land for sale by Appropriate Authority. It reads:-
"jj(a)(b) proceeds from the sale of land referred to in para IV of sub-clause (a) shall be used for the purpose of providing infrastructural facilities."
The above quoted sub-clause (b) indicates the intention of the provisions to be contained in a Town Planning Scheme. We have quoted the extracts and observations from the judgments of the Supreme Court in which Bombay Town Planning Act and its provisions were upheld. The Town Planning Scheme in its implementation inherently requires plotting, re-plotting, reconstitution of plots, division of plots, laying out of roads and change of land use. For proper plan and Town Planning scheme, it is necessary to provide public facilities. In the process of achieving the object of Town Planning, certain percentage of land is required to be reserved for providing public facilities. The reservation of 15% of land to be utilized for sale by the Authority is not for only raising Revenue or fund of the Authority. The provision of reservation is to earmark a certain percentage of land for public facilities to be provided to the residents living within the area of the Town Planning Scheme. This being a provision necessary for Town Planning, we are not prepared to accept the argument that the provision is merely a money making provision and beyond the legislative competence of the State Legislature. The Page 96 of 169 C/WPPIL/111/2013 CAV JUDGMENT provision of reservation of land in a reasonable limit to for utilization by sale by the Authority for providing infrastructural facilities, is a subsidiary or ancillary provision necessary for preparation and implementation of a Town Planning Scheme and does not suffer from any constitutional infirmity or lack of legislative competence. The challenge therefore of Para (iv) or sub-clause (iv) of clause jj(a) also therefore fails.
39. Having thus considered all the grounds urged on behalf of the petitioners, we record our conclusion thus:
The impugned legislation contained in clause (jj)(a) of subsection (3) of Section 40 is a valid piece of legislation and the challenge to the same by the petitioners based on Article 14 and Article 300-A of the Constitution fails.
The petitions partly succeed on the interpretation of the provisions of Section 40 read with Section 20 of the Act. The contention advanced on behalf of the petitioners is accepted that the impugned clause (jj)(a) of subsection (3) of Section 40 is operative for the land other than the land mentioned in subsection (2) of Section 20 of the Act."
We find that the aforesaid decision was challenged before the Supreme Court in Civil Appeal No.1864 of 2001. The Supreme Court vide judgment and order dated 9th May 2014 has confirmed the decision of this Court upholding the constitutional validity of Section 40(3)(jj)(a) of the Act.
In our opinion, there is no prohibition or any embargo under the Act against following the concept of specification of the expected percentage of land as prescribed under Section 40(3)(jj)(a) of the Act, by effecting necessary amendment in the GDCR, i.e. a part of the development plan, and it would be very much in furtherance of carrying out the objects of the Act as provided under clause (m) of sub-section (2) of Section 12 Page 97 of 169 C/WPPIL/111/2013 CAV JUDGMENT of the Act. Such a measure is required to be interpreted purposively and if so interpreted, the same cannot be said to have changed the legislative policy nor its requirement in express provision to that effect in the Act.
In the aforesaid context, we should look into with profit the decision of the Supreme Court in the case of Bombay Dyeing & Manufacturing Company Limited v. Bombay Environmental Action Group and Others, (2006)3 SCC 434. In the said case, the respondents filed a writ-petition before the High Court of Bombay questioning the validity of Development Control Regulation 58 (DCR-58) (amended/modified in 2001) framed by the State of Maharashtra in terms of the Maharashtra Regional and Town Planning Act, 1966. The writ petition questioning the validity of DCR-58 was filed allegedly to protect the interests of the residents of Mumbai and to improve the quality of life in the town of Mumbai which was said to have drastically deteriorated in the past 15 years as also for preventing further serious damage to town planning and the ecology so as to avoid an irretrievable break down of the city. The main thrust of the writ petitioners was to ensure "open space" for the city and to provide for the crying need of space for public housing.
From the paragraph 43 onwards of the judgment, the Court has discussed the legal history of DCR-58. In paragraph 46, the Court has taken note of the DCR-58 as amended in the year 2001, which reads as under (only a part of the same is quoted):
"58. Development or redevelopment of lands of cotton Page 98 of 169 C/WPPIL/111/2013 CAV JUDGMENT textile mills; (1) Lands of sick and/or closed cotton textile mills.- With the previous approval of the Commissioner to a layout prepared for development or redevelopment of the entire open land built-up area of the premises of a sick and/or closed cotton textile mill, and on such conditions deemed appropriate and specified by him, and as a part of a package of measures recommended by the Financial Institutions and Commissionerate of Industries for the revival/rehabilitation of a potentially viable sick and/or closed mill, the Commissioner may allow;
(a) The existing built-up areas to be utilised-
(i) for the same cotton textile or related user subject to observance of all other Regulations;
(ii) for diversified industrial users in accordance with the industrial location policy, with office space only ancillary to and required for such users, subject to and observance of all other Regulations;
(iii) for commercial purposes, as permitted under these Regulations;
(b) Open lands and balance FSI shall be used as in the Table below :
Sr. Extent Percentage to be Percentage to be Percentage to No. earmarked for earmarked and be earmarked recreation handed over for and marked and Ground/ Garden, development by to be developed Playground or any MHADA for public for residential or other open user housing /(for mill commercial user as specified by workers housing to be developed the Commissioner as per guidelines (including users approved by permissible in Government to residential or be shared commercial equally) zone as per these Regulations) or diversified industrial users as per Industrial Location Policy to be developed by the owner.
(1) (2) (3) (4) (5) Page 99 of 169 C/WPPIL/111/2013 CAV JUDGMENT 1 Up to and 33 27 40 inclusive of 5 Ha. 2 Between 5 Ha. 33 34 33 And up to 10 Ha. 3 Over 10 Ha. 33 37 30
Note-(i) In addition to the land to be earmarked for recreation ground/garden/playground or any other open user as in column (3) of the above Table, open spaces, public amenities and utilities for the lands shown in columns (4) and (5) of the above Table as otherwise required under these Regulations shall also be provided."
From paragraph 72 onwards of the judgment, the Supreme Court has explained the principles of interpretation. Relevant paragraphs thereof are reproduced hereunder:
"76. As would appear from the discussions made hereinafter, we are, however, of the opinion that for correct interpretation of DCR 58, the principles of purposive interpretation should be applied.
77. In Francis Bennion's Statutory Interpretation, purposive construction has been described in the following manner :
'A purposive construction of an enactment is one which gives effect to the legislative purpose by-
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-
and-literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and- strained construction).'
78. In K.L. Gupta and Ors. v. The Bombay Municipal Corporation and Ors. [1968 (1) SCR 274], it was stated :
Page 100 of 169 C/WPPIL/111/2013 CAV JUDGMENT"Before examining the contentions on the points of law raised in this case, it is necessary to appreciate what the Act sought to achieve and why it was brought on the statute book. In order to do this, it is necessary to take stock of the position at the time of its enactment so that attention may be focused on the situation calling for a remedy and how the legislature sought to tackle it..."
79. However, the pith of this statement has now found form in the doctrine of purposive construction, as accepted by this Court in several cases."
From paragraph 95 onwards, the Court has dealt with the interpretation of the Act and Regulations, which are reproduced hereunder:
"95. DCR 58 was made to revive and resurrect neighbourhoods, foster development, regenerate lands which had become sterile, encourage the shifting of textile mills (thereby reducing the attendant strain and industrial activity places on civil amenities) and pay off chronic arrears and dues of workers, banks institutions, statutory dues, etc. In its operation and implementation new DCR 58 would also unlock large real estate and make it available to residents.
96. A statute, it is well known, is to be read as a whole. Subordinate legislation indisputably has to be read in the light of the provisions of the Act whereunder it has been made. It, however, must be read having regard to the purpose and object for which the statute is made.
97. The MRTP Act provides for formulation of regional plans and development plan. The planning authority, before a plan is finalized, is required to see that the provisions thereof have been fully complied with. The MRTP Act provides for appointment of a town planning officer who possesses requisite qualification. The MRTP Act lays down the matters which are mandatorily required to be considered by the planning authority in all Page 101 of 169 C/WPPIL/111/2013 CAV JUDGMENT the stages, namely, survey, preparation, submission and sanction of development plan. While doing so, it is bound to take into consideration a large number of factors as specified therein. The State has been conferred with a special power to frame development control regulations in terms of Section 159(2) of the MRTP Act. Development Control Regulations have been framed in terms of the said provisions. The State has furthermore been given a power to supervise and maintain control over the planning authorities. Such control may be exercised in more than one manner. The planning authority is not only required to obtain statutory sanction and approval wherever applicable, but the State, has also been conferred with a special power to make a development plan subject, of course, to the condition that the same shall not change the character of such development plan.
98. Section 22 of the MRTP Act provides for the contents of the development plan, i.e., to be divided into several areas for allocating the use of land for the purposes as, for example, residential or commercial, proposals for designation of land for public purposes, proposal for designation of areas for open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, sanctuaries, dairies, transports and communications, such as roads, highways, parkways, railways, waterways, canals and airports, including their extension and development, water supply, drainage, sewerage, etc. and reservation of land for community facilities and services. Whereas designation and/or reservation of areas for certain public purposes would vary from place to place, it must take care of not only the public purposes but also several others including open spaces. Water supply, drainage, sewerage, and other public utilities including electricity and gas or highways or waterways, schools, etc., however, would be considered to be equally important.
99. A planning authority, therefore, must take into consideration all the relevant factors, although in a given case, one gets priority over the other. Ordinarily, it would not be for the court to substitute its decision to that of the planning authority unless an appropriate case is made out therefor. When, however, question of public interest comes up, the court indisputably would try to Page 102 of 169 C/WPPIL/111/2013 CAV JUDGMENT delicately balance the different factors, if possible.
100. Both open space as also the other factors relevant for making the regulation would be in public interest. The question would, however, be as to which is of greater public interest. Public interest, thus, would be a relevant factor also for interpretation of the statute. Public interest so far as maintenance of ecology is concerned pertains to a constitutional scheme comprising of Articles 14, 21, 48A and 51A(g) of the Constitution of India, the other factors are no less significant. [See also T. N. Goda-varman Thirumulpad v. Union of India and others, (2002) 10 SCC 606; N.D. Jayal and another v. Union of India and others, (2004) 9 SCC 362 and Vellore Citizens' Welfare Forum v. Union of India and others, (1996) 5 SCC 647]. All concerned, namely, operating agencies, the State Government, the National Textile Mills as also BIFR interpreting the said regulation opined that sharing of land is imperative, but the question remains, to what extent? Whether radical changes were made in the year 2003, when the State made the aforementioned clarification would again be a question which is required to be posed and answered. Was such a clarification in consonance with the reports of Charles Correa Committee and the Ranjit Deshmukh Committee?
Did 2000 acres of vacant land which would have been otherwise available come down to 50 acres? Had any balance been struck between the original concept of sharing of lands by Bombay Municipal Corporation, MHADA and the mill owners? It is in the aforementioned backdrop, the nature of change must be considered. The amendment in 2001, therefore, must be interpreted having regard to the provisions of the MRTP Act which professed increase in the ecological interest by providing more open space and not decreasing the same, but again the question would be "was there any reduction"? The amendments in the regulation must be construed in furtherance of the legislative policy and not in derogation thereof. But, while doing so, the past experience of the State which paved the necessities for modifying the earlier regulation should not be forgotten.
103. Having said so, we have no other option but, as indicated hereinbefore, to take recourse to the principles of purposive construction and interpret DCR 58 in accordance with the scope and object of the Act. For the Page 103 of 169 C/WPPIL/111/2013 CAV JUDGMENT said purpose, we may also have to consider various aspects of the matter. We would make an attempt in this behalf."
From paragraph 104 onwards, the Court has explained the scope of judicial review vis-a-vis legislative policy.
"SCOPE OF JUDICIAL REVIEW VIS-A-VIS LEGISLATIVE POLICY
104. A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the Appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy.Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith.
105. In P. J. Irani v. The State of Madras [(1962) 2 SCR 169], this Court has clearly held that a subordinate legislation can be challenged not only on the ground that it is contrary to the provisions of the Act or other statutes; but also if it is violative of the legislative object. The provisions of the subordinate legislation can also be challenged if the reasons assigned therefor are not germane or otherwise mala fide. The said decision has been followed in a large number of cases by this Court. [see also M/s. Punjab Tin Supply Co., Chandigarh and Others v. Central Government and Others, (1984) 1 SCC 206].
106. It is interesting to note that in Secretary,Ministry of Chemicals and Fertilizers, Government of India v. Cipla Ltd. and Ors. [(2003) 7 SCC 1], this Court opined:
Page 104 of 169 C/WPPIL/111/2013 CAV JUDGMENT"It is axiomatic that the contents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. At the same time, the Central Government which combines the dual role of policy- maker and the delegate of legislative power, cannot at its sweet will and pleasure give a go-by to the policy guidelines evolved by itself in the matter of selection of drugs for price control. The Government itself stressed on the need to evolve and adopt transparent criteria to be applied across the board so as to minimize the scope for subjective approach and therefore came forward with specific criteria. It is nobody's case that for any good reasons, the policy or norms have been changed or have become impracticable of compliance."
[Emphasis supplied]"
In paragraph 133, the Court observed as under:
"133. The effect of amendment in clause (b) must be seen from the Table appended thereto. In terms of the Old Regulation in respect of land covering more than 10 hectares, for green area 33% land was to be set apart, and for MHADA 37% thereof, whereas the owner retained 30%. Under the new DCR 58, admittedly the owner of the mill at least obtains construction rights over 63% of the land as the land in terms of Column 3 gets loaded in Column 5. The mill owner furthermore even according to the writ petitioners gets TDR of 37%. Open land in clause
(b) is what is not covered by the built-up area. The balance FSI, indisputably, is not open area."
In paragraph 158 of the judgment, the Court made the following observations:
"158. The said Regulations were framed under Page 105 of 169 C/WPPIL/111/2013 CAV JUDGMENT Section 22(m) of the MRTP Act for controlling and regulating the use and development of land. They are not, and cannot be, treated to be provisions for compulsory acquisition of land. It also does not provide for reservation and/or designation in a development plan."
Bearing the aforesaid principles in mind, as explained by the Supreme Court, we are of the view that the impugned regulation framed in exercise of power under Section 12, Clause (2), Sub-clause (m) should be interpreted purposively and not literally. A regulatory act must be construed having regard to the purpose it seeks to achieve. The State as a statutory authority is not asking for something which is not contemplated under the Act. The Supreme Court, in the above referred case, was dealing with almost a similar regulation and took the view that the same was for controlling and regulating use and development of land. The Court has observed in no uncertain terms that the regulations were not and could not be treated to be provisions for compulsory acquisition of land or reservation of land.
In view of the above, it is clear that deduction or specification of the expected percentage of land to be allotted in the development plan should not be confused with total reservation of the land for the purposes specified in clause (b) of sub-section (2) of Section 12 of the Act. Section 12 (2) (m) of the Act neither provides for reservation nor designation nor acquisition, but it merely provides for "control of development"
with the right relating to (i) transferability of land (ii) possession of land and (iii) land being not vested in the Government but would remain with the owner.Page 106 of 169 C/WPPIL/111/2013 CAV JUDGMENT
The meaning of the word "control" as it appears at page 442 of Words and Phrases (Volume-9, permanent Edition), is as under:
"The word 'control' is synonymous with superintendence, management or authority to direct, restrict or regulate."
In the case of State of Mysore v. Allum Karibasappa, (1974)2 SCC 498 at page 501, the Supreme Court defined the word "control" as under:
"The word 'control' suggests check, restraint or influence. 'Control' is intended to regulate and hold in check and restrain from action."
We find merit in the submission of the learned counsel appearing for the respondents that under Section 20, the area development authority or any other authority for whose purpose the land is designated in the final development plan for any purpose specified in clause (d), (f), (k), (n) or (o) of sub- section (2) of Section 12 may acquire the land either by agreement or under the provisions of the Land Acquisition Act. There is no reference of clause (m) of sub-section (2) of Section 12 in Section 20 of the Act. Therefore, all the clauses
(a) to (l), (n) and (o) of sub-section (2) of Section 12 of the Act provide proposals for reservation or designation and not the provision which is, in fact, provided by clause (m).
The proposed regulation in the GDCR is in the form of 'amenities space'. The term 'amenity' has been defined under Page 107 of 169 C/WPPIL/111/2013 CAV JUDGMENT the Act. Section 2(ii) defines 'amenity' as under :
"'amenity' includes roads, streets, open spaces, parks, playgrounds, recreational grounds, water and electric supply, street lighting, sewerage, drainage, public works and other utility services and conveniences;"
On the other hand, Section 2(viii) defines the term 'development', which reads as under :
"'development' with all its grammatical variations and cognate expressions, means the carrying out of any building, engineering, mining, or other operations in, or over, or under land or the making of any material change in any building or land or in the use of any building or land, and includes layout and subdivision of any land;"
The Supreme Court in M/s.D.L.F. Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and others, (2003)5 SCC 622, held that construction of schools, hospitals and community centres and other community buildings does not come within the purview of the term 'development works' as the same come within the purview of the term 'amenities'.
DELEGATED LEGISLATION :
The above takes us to the second contention canvassed by Mr.M.C.Bhatt, the learned counsel appearing for the petitioners, regarding the scope and power of the subordinate legislation to frame the impugned regulations.
According to Mr.Bhatt, the power to frame regulations flow from Section 119 of the Act. Section 119 provides that an appropriate authority may, with a previous approval of the Page 108 of 169 C/WPPIL/111/2013 CAV JUDGMENT State Government, make regulations consistent with the Act and the Rules made thereunder, to carry out the purposes of the development plan and of the town planning scheme and for regulating its procedure and conduct of business. Section 119(2) states that in particular, and without prejudice to the generality of the foregoing power, such authority may make regulations providing for, any other matter which has to be or may be prescribed by regulations. Mr.Bhatt submits that the power of the regulation making authority, must be interpreted keeping in view the provisions of the Act. According to Mr.Bhatt, the Act is silent as regards the restrictions to set apart 35% to 40% of the land for the purpose of development at the time of seeking the development permission by the owner of the land.
It has been strenuously contended before us that a delegated power to legislate by making regulations 'for carrying out the purpose of the Act' is a general delegation without laying down any guidelines and, therefore, it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.
It is true that a delegated legislation can be challenged before the Courts on the ground of being ultra vires the parent Act. The Courts can adjudge the legality and validity of delegated legislation by applying the doctrine of ultra vires. The doctrine of ultra vires has two aspects : substantive and procedural. When delegated legislation goes beyond the scope of the authority conferred by, or it is in conflict with, the parent statute it is invalid and this is known as substantive ultra vires.Page 109 of 169 C/WPPIL/111/2013 CAV JUDGMENT
When the regulation-making authority deviates from the procedure, if any, prescribed by the parent statute for making regulations, it is known as procedural ultra vires. In these writ petitions, what is urged is the substantive ultra vires only and not procedural ultra vires. Whenever any person or body of persons, exercising statutory authority acts beyond the powers conferred upon him or them by statute, such acts become ultra vires and, accordingly, void. In other words, substantive ultra vires means the delegated legislation goes beyond the scope of the authority conferred on it by the parent statute. It is a fundamental principle of law that a public authority cannot act outside the powers i.e., ultra vires, and it has been rightly described as the central principle and foundation of large part of administrative law by Prof. Wade in his Treatise on Administrative Law. The act which is for any reason in excess of power is ultra vires.
In Indian Express Newspapers v/s. Union of India, AIR 1986 SC 515, E.S.Venkataramaiah, J. (as he then was) stated (para 73) :
"A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary".Page 110 of 169 C/WPPIL/111/2013 CAV JUDGMENT
In the same case, the Court also opined that the power delegated by the statute to the delegate is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted and on relevant consideration of material facts. It has also stated that all his decisions must be in harmony with the Constitution and other laws of the land; if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, Court might well say, Legislature never intended to give authority to make such regulations, they are unreasonable and ultra vires. Thus, delegated legislation or subordinate legislation can be held valid only if it conforms exactly to the power granted. Regulations, whether made under the Constitution or a statute, must be intra vires the parent law under which power has been delegated. If the regulation-making power is conferred and the regulations made are in excess of that power the regulation would be void even if the Act provided that they shall have effect as if enacted in the Act. The validity of the regulation is always open to challenge on the ground that it is unauthorised. The validity of the delegated legislation is a question of vires, that is, whether or not the power has been exceeded or otherwise wrongfully exercised or is inconsistent with the parent Act.
The doctrine of ultra vires quite often is one of the recognised principles/grounds to invalidate a delegated legislation. The basic principle of this doctrine is that an authority being the creature of the law it has only such powers as are granted to it by the law.
Page 111 of 169 C/WPPIL/111/2013 CAV JUDGMENTDeclaring a rule in the Karnataka Motor Vehicle Rules, 1963 ultra vires the Motor Vehicles Act, 1939 as the rule was inconsistent with a section in the Act, the Supreme Court, in State of Karnataka v/s. H.Ganesh Kamath, AIR 1983 SC 550, held that the rule-making power cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power and that conferment of rule-making power by an Act does not enable the rule- making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. The Apex Court in State of U.P. v/s. Renusagar Power Co., reported in AIR 1988 SC 1737, held (Para 76) :
"If the exercise of power is in the nature of subordinate legislation, the exercise must conform to the provisions of the statute. All the conditions of the statute must be fulfilled. Thus, delegated legislation repugnant to, or inconsistent with or in contravention of, or in excess of, or overriding the provisions of, the parent Act is ultra vires."
Thus, it is clear that if power is conferred to legislate only with respect to certain topics or for certain purposes or in certain circumstances, the limits of the power must not be crossed. For this purpose, the phraseology of the delegating provision becomes relevant. In applying the doctrine, the Court has a three-fold task : first, to determine the meaning of the words used in the Act itself to describe the delegated legislation which the delegate is authorised to make; secondly, to determine the meaning of the subordinate legislation itself, Page 112 of 169 C/WPPIL/111/2013 CAV JUDGMENT and, finally, to decide whether the subordinate legislation complies with that description.
It also needs to be emphasised before proceeding further to deal with the contention of the learned counsel for the petitioner, that in evaluating the vires of the delegated legislation, the Courts start with the presumption of constitutionality, competence and reasonableness of the delegated legislation impugned before it just as the Courts do in respect of primary legislation by the legislature. As a general proposition, delegated legislation is regarded as validly made, and part of the law of the land, until a Court decides otherwise.
In Hoffman-La Roche v/s. Secretary of State for Trade and Industry, (1975) AC 295, Lord Diplock speaking for the House of Lords referred to this aspect and observed :
"......the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a Court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question."
Thus, the Court while reviewing the validity of a delegated legislation, should presume such delegated legislation prima facie to be intra vires and it is for the person aggrieved to prove affirmatively that the presumption in favour of constitutionality, competence, fairness and reasonableness is unsustainable as held by the Apex Court in State of U. P. v/s. Baburam, AIR 1961 SC 751. The onus of establishing invalidity is on the challenger.
Page 113 of 169 C/WPPIL/111/2013 CAV JUDGMENTWe need to examine the submission, whether the power to make regulations in respect of any other matter, which is to be or may be prescribed will authorize the framing of the regulation, which is impugned before us 'Any other matter which is to be prescribed' must mean, any other matter which has to be prescribed under the Act, and 'any other matter which may be prescribed' must mean, any other matter regarding which there is a discretion to prescribe or not to prescribe under the Act.
One of the modes adopted by the Legislature conferring the regulation-making power is first to provide in general terms i.e., for carrying into effect the provisions of the Act, and then to say that in particular, and without prejudice to the generality of the foregoing power, regulations may provide for number of enumerated matters. Section 119 of the Act, with which we are concerned in the matters at hand, confers on the appropriate authority the power to make regulations. It reads as follows :
"Section 119. Power to make regulations.
(1) An appropriate authority may, with the previous approval of the State Government make regulations consistent with this Act and the rules made hereunder, to carry out the purposes of the development plan and of the town planning scheme and for regulating its procedure and conduct of business.
(2) In particular, and without prejudice to the generality of the foregoing power such authority may make --
(a) to (e) xxxxx xxxxx xxxxx Page 114 of 169 C/WPPIL/111/2013 CAV JUDGMENT
(f) regulations providing for any other matter which has to be or may be prescribed by regulations."
In this context, we may quote with profit a decision of the Supreme Court in the case of State of Jammu & Kashmir v. Lakhwinder Kumar and others, AIR 2013 SC 3163. In that case, the Supreme Court considered Section 141 of the Border Security Force Act, which provides for the power to make rules. In para 16, the Supreme Court quoted Section 141 of the Act and thereafter, made the following observations which, in our opinion, are worth taking note of and answer the contention raised on behalf of the petitioners so far as Section 119(f) of the Act is concerned:
"In our opinion, when the power is conferred in general and thereafter in respect of enumerated matters, as in the present case, the particularlisation in respect of specified subject is construed as merely illustrative and does not limit the scope of general power. Reference in this connection can be made to a decision of this Court in the case of Rohtak & Hissar Districts Electric Supply Co. Ltd. v. State of U.P., AIR 1966 SC 1471, in which it has been held as follows:
"..........Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and Section 15(2) specifies some of the matters enumerated by clauses (a) to (e), in respect of which rules may be framed. It is well-settled that the enumeration of the particular matters by sub-section (2) will not control or limit the width of the powers conferred on the appropriate Government by sub-section (1) of Section 15; and so, if it appears that the item added by the appropriate Government has relation to conditions of employment, its addition cannot be challenged as being invalid in law........"
(Underlining ours) Page 115 of 169 C/WPPIL/111/2013 CAV JUDGMENT The Privy Council applied this principle in the case of Emperor v. Sibnath Banerji, AIR 1945 PC 156, to uphold the validity of Rule 26 of the Defence of India Rules, which though was found in excess of the express power conferred under enumerated provision, but covered under general power. Relevant portion of the judgment reads as under:
"Their Lordships are unable to agree with the learned Chief Justice of the Federal Court on his statement of the relative positions of sub-sections (1) and (2) of Section 2, Defence of India Act, and counsel for the respondents in the present appeal was unable to support that statement, or to maintain that R.26 was invalid. In the opinion of their Lordships, the function of sub-section (2) is merely an illustrative one; the rule-making power is conferred by sub-section (1), and "the rules"
which are referred to in the opening sentence of sub-section (2) are the rules which are authorized by, and made under, sub-section(1); the provisions of sub-section (2) are not restrictive of sub-section (1), as indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub-section (1)." There can be no doubt - as the learned Judge himself appears to have thought - that the general language of sub- section (1) amply justifies the terms of R.26, and avoids any of the criticisms which the learned Judge expressed in relation to sub-section (2).
Their Lordships are therefore of opinion that Keshav Talpade v. Emperor, I.L.R. (1944) Bom. 183, was wrongly decided by the Federal Court, and that R.26 was made in conformity with the powers conferred by sub-section (1) of Section 2, Defence of India Act........."
A constitution Bench of this Court in the case of Afzal Ullah v. State of Uttar Pradesh, AIR 1964 SC 264, quoted with approval the law laid down by the Privy Council in Page 116 of 169 C/WPPIL/111/2013 CAV JUDGMENT the case of Sibnath Banerji (supra) and held that enumerated provisions do not control the general terms as particularization of topics is illustrative in nature. It reads as follows:
"13. Even if the said clauses did not justify the impugned bye-law, there can be little doubt that the said bye-laws would be justified by the general power conferred on the Boards by Section 298(1). It is now well-settled that the specific provisions such as are contained in the several clauses of Section 298(2) are merely illustrative and they cannot be read as restrictive of the generality of powers prescribed by Section 298(1), vide Emperor v.Sibnath Banerji, AIR 1945 PC 156. If the powers specified by Section 298(1) are very wide and they take in within their scope bye- laws like the ones with which we are concerned in the present appeal, it cannot be said that the powers enumerated under Section 298(2) control the general words used by Section 298(1). These latter clauses merely illustrate and do not exhaust all the powers conferred on the Board, so that any cases not falling within the powers specified by Section 298(2) may well be protected by Section 298(1), provided, of course, the impugned bye-law can be justified by-reference to the requirements of Section 298(1). There can be no doubt that the impugned bye-laws in regard to the markets framed by Respondent No. 2 are for the furtherance of municipal administration under the Act, and so, would attract the provisions of Section 298(1). Therefore, we are satisfied that the High Court was right in coming to the conclusion that the impugned bye-laws are valid."
In view of what we have observed above it is evident that Rule 41 of the Rules has been made to give effect to the provisions of the Act. In our opinion, it has not gone beyond what the Act has contemplated or is any way in conflict thereof. Hence, this has to be treated as if the same is contained in the Act. Wide discretion has been given to the specified officer under Section 80 of the Act to make a choice between a Criminal Court and a Page 117 of 169 C/WPPIL/111/2013 CAV JUDGMENT Security Force Court but Rule 41 made for the purposes of carrying into effect the provision of the Act had laid down guidelines for exercise of that discretion. Thus, in our opinion, Rule 41 has neither gone beyond what the Act has contemplated nor it has supplanted it in any way and, therefore, the Commanding Officer has to bear in mind the guidelines laid for the exercise of discretion."
Section 23 of the Act provides for the powers and functions of the Urban Development Authority and one of the powers and functions conferred upon the Urban Development Authority is to control the development activities in accordance with the development plan in the urban development area. Under Section 23(1)(v), the powers and functions of the Urban Development Authority shall include the power to frame regulations of the nature impugned before us. In such circumstances, we are not impressed with the submission of Mr.Bhatt that the regulations framed travel beyond the regulation making power. Section 119 of the Act did not require that the enumerated regulations would be exhaustive. Any regulation, if it could be shown to have been made 'to carry into effect the purpose of the Act', would be within the regulation making power. The impugned regulation being statutory, is entitled to the insignia of all the presumptions available to a statutory provision. The Supreme Court, through Subbarao, J. (as His Lordship then was), considering the scope of the rule when its vires was assailed vis-a-vis the power of the Court to take judicial notice of presumption for the purpose of construction of the rule, held thus :
"Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if Page 118 of 169 C/WPPIL/111/2013 CAV JUDGMENT contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. The statutory rules cannot be described as, or equated with administrative directions."
In J.K.Cotton Spinning and Weaving Mills v/s. State of Uttar Pradesh, reported in AIR 1961 SC 1170 at p.1174, Das Gupta, J. held :
"In the Interpretation of Statutes the Court always presume that the Legislature inserted every part thereof for a purpose and the legislation intention is that every part of the Statute should have effect. These presumptions will have to be made in the case of rule- making authority also."
In the aforesaid context, we may quote with profit a very recent pronouncement of the Supreme Court in the case of Bharat Sanchar Nigam Limited v. Telecom Regulatory Authority of India and others, (2014)3 SCC 222. In the said case before the Supreme Court, while dealing with the subject of power to regulate and the scope of the subordinate legislation to frame regulations, the Court made the following observations, which are worth noting :
"90. It is settled law that if power is conferred upon an authority/body to make subordinate legislation in general terms, the particularization of topics is merely illustrative and does not limit the scope of general power. In Emperor v. Sibnath Banerji, AIR 1942 PC 156, the Privy Council considered the correctness of the judgment of the Federal Court, which held that Rule 26 of the Defence of India Rules framed under clause (j) of Section 3(2) of the Defence of India Act, 1939 was ultra vires the provisions of the Act. While reversing the judgment of the Federal Court, the Privy Council observed:Page 119 of 169 C/WPPIL/111/2013 CAV JUDGMENT
"....In the opinion of their Lordships, the function of sub-section (2) is merely an illustrative one; the rule-making power is conferred by sub- section (1), and "the rules" which are referred to in the opening sentence of Sub-section (2) are the Rules which are authorized by, and made under, sub-section (1); the provisions of sub-section (2) are not restrictive of Sub-section (1), as, indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub-section (l)."
91. The proposition laid down in Sibnath Banerji's case was followed by this Court in large number of cases.
92. In Afzal Ullah v. State of Uttar Pradesh, 1964 (4) SCR 991, the Constitution Bench considered challenge to the validity of bye-law No.3 framed by Municipal Board, Tanda. The appellant had questioned the bye-law on the ground that the same was ultra vires the provisions of Section 241 of the United Provinces Municipalities Act, 1916. The facts of that case were that the appellant had established a market for selling food-grains, vegetables, fruits, fish etc. The Chairman of the Municipal Board issued a notice to the appellant requiring him to obtain a licence for running the market with an indication that if he fails to do so, criminal proceedings will be initiated against him. On account of his failure to take the required licence, the appellant was tried by Tahsildar, Tanda in Criminal Case No.141 of 1960. The Tahsildar acquitted the appellant on the ground that the prosecution had failed to prove the fact that in the market established on the land belonging to the appellant, vegetables, fruits and fish were sold. The order of acquittal was set aside by the High Court and the appellant was convicted under Section 299(1) of the 1916 Act read with clause (3) of the relevant bye- laws.
93. In the appeal filed before this Court in Afzal Ullah, it was argued that Bye-law 3(a) and other bye-laws passed by the Board are ultra vires the provisions of Section 241 of the Act. The Constitution Bench referred to the provisions of Sections 241 and 298 of the Act and various clauses of Section 298(2) which specify the topics on Page 120 of 169 C/WPPIL/111/2013 CAV JUDGMENT which bye-laws can be framed and observed:
"13. Even if the said clauses did not justify the impugned Bye-law, there can be little doubt that the said Bye-laws would be justified by the general power conferred on the Boards by Section 298(1). It is now well-settled that the specific provisions such as are contained in the several clauses of Section 298(2) are merely illustrative and they cannot be read as restrictive of the generality of powers prescribed by Section 298(1) (vide Emperor v. Sibnath Banerji). If the powers specified by Section 298(1) are very wide and they take in within their scope Bye-laws like the ones with which we are concerned in the present appeal, it cannot be said that the powers enumerated under Section 298(2) control the general words used by Section 298(1). These latter clauses merely illustrate and do not exhaust all the powers conferred on the Board, so that any cases not falling within the powers specified by Section 298(2) may well be protected by Section 298(1), provided, of course, the impugned Bye-law can be justified by- reference to the requirements of Section 298(1). There can be no doubt that the impugned Bye-laws in regard to the markets framed by Respondent 2 are for the furtherance of municipal administrate ion under the Act, and so, would attract the provisions of Section 298(1). Therefore, we are satisfied that the High Court was right in coming to the conclusion that the impugned Bye-laws are valid."
(emphasis supplied)
94. In Rohtak Hissar District Electricity Supply Company Ltd. v. State of Uttar Pradesh and others, AIR 1966 SC 1471, this Court dealt with the rule-making power of the State Government under the Uttar Pradesh Industrial Disputes Act, 1947 and observed:
"18.... Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and Section 15(2) specifies Page 121 of 169 C/WPPIL/111/2013 CAV JUDGMENT some of the matters enumerated by clauses (a) to
(e), in respect of which rules may be framed. It is well-settled that the enumeration of the particular matters by sub-section (2) will not control or limit the width of the power conferred on the appropriate Government by sub-section (1) of Section 15; and so, if it appears that the item added by the appropriate Government has relation to conditions of employment, its addition cannot be challenged as being invalid in law."
(emphasis supplied)
95. In K.Ramanathan v. State of Tamil Nadu, (1985)2 SCC 116, a three-Judge Bench of this Court considered the scope of Section 3(1), (2) and Section 5 of the Essential Commodities Act, 1955. The appellant and other agriculturists of Tanjavur District had challenged the constitutional validity of clause 3(1-a) of the Order issued by the Central Government under Section 5 read with Section 3 of the Essential Commodities Act, 1955 placing complete ban on the transport, movement or otherwise carrying of paddy outside the districts. The High Court rejected their challenge and dismissed the writ petitions. Before this Court, it was argued that the delegation of power under Section 5 of the Act must necessarily be given a restricted interpretation. While rejecting the argument, this Court referred to the judgment in Sibnath Banerji case, Santosh Kumar Jain v. State, AIR 1951 SC 201 and observed:
"11. Learned Counsel for the appellant however strenuously contends that the delegation of powers by the Central Government under Section 5 of the Act must necessarily be in relation to 'such matters' and subject to 'such conditions' as may be specified in the notification. The whole attempt on the part of the learned Counsel is to confine the scope and ambit of the impugned order to CL (d) of Sub- section (2) of Section 3 of the Act which uses the word 'regulating' and take it out of-the purview of Sub-section (1) of Section 3 which uses the words 'regulating or prohibiting'. That is not proper way of construction of Sub-section (1) and (2) of Section 3 of the Act in their normal setting. The restricted Page 122 of 169 C/WPPIL/111/2013 CAV JUDGMENT construction of Section 3 contended for by learned Counsel for the appellant would render the scheme of the Act wholly unworkable as already indicated, the source of power to make an order of this description is Sub-section (1) of Section 3 of the Act and sub's. (2) merely provides illustration for the general powers conferred by Sub-section (1). Sub- section (2) of Section 3 of the Act commences with the words 'Without prejudice to the generality of the powers conferred by Sub-section (1)'. It is manifest that Sub-section (2) of Section 3 of the Act confers no fresh powers but is merely illustrative of the general powers conferred by Sub-section (1) of Section 3 without exhausting the subjects in relation to which such powers can be exercised."
96. The question was again considered in D.K. Trivedi and Sons v. State of Gujarat, 1986 (Supp) SCC 20. This Court was called upon to examine the challenge to the constitutionality of Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, the power of the State Governments to make rules under Section 15 to enable them to charge dead rent and royalty in respect of leases of mines and minerals granted to them and to enhance the rates of dead rent and royalty. While repelling the argument that the 1957 Act does not contain guidelines for exercise of power by the State Government under Section 15(1), this Court observed:
"32. There is no substance in the contention that no guidelines are provided in the 1957 Act for the exercise of the rule-making power of the State Governments under Section 15(1). As mentioned earlier, Section 15(1) is in pari materia with Section 13(1). Section 13, however, contains sub-section (2) which sets out the particular matters with respect to which the Central Government may make rules 'In particular, and without prejudice to the generality of the foregoing power', that is, the rule- making power conferred by sub- section (1). It is well settled that where a statute confers particular powers without prejudice to the generality of a general power already conferred, the particular powers are only illustrative of the general power Page 123 of 169 C/WPPIL/111/2013 CAV JUDGMENT and do not in any way restrict the general power. Section 2 of the Defence of India Act, 1939, as amended by Section 2 of the Defence of India (Amendment) Act, 1940, conferred upon the Central Government the power to make such rules as appeared to it 'to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community'. Sub-section (2) of Section 2 conferred upon the Central Government the power to provide by rules or to empower any authority to make orders providing for various matters set out in the said sub-section. This power was expressed by the opening words of the said sub-section (2) to be 'Without prejudice to the generality of the powers conferred by sub-section (1)'. In King Emperor v. Sibnath Banerji the Judicial Committee of the Privy Council held:
"...In the opinion of Their Lordships, the function of sub-section (2) is merely an illustrative one; the rule-making power is conferred by subsection (1), and 'the rules' which are referred to in the opening sentence of sub-section (2) are the rules which are authorized by, and made under, sub-section (1); the provisions of sub-section (2) are not restrictive of sub-section (1), as, indeed, is expressly stated by the words 'without prejudice to the generality of the powers conferred by sub- section (1)'."
The above proposition of law has been approved and accepted by this Court in Om Prakash v. Union of India, (1970) 3 SCC 942 and Shiv Kirpal Singh v. V.V.Giri, (1970) 2 SCC 567.
"33. A provision similar to sub-section (2) of Section 13, however, does not find place in Section 15. In our opinion, this makes no difference. What sub- section (2) of Section 13 does is to give illustrations of the matters in respect of which the Central Government can make rules for 'regulating the Page 124 of 169 C/WPPIL/111/2013 CAV JUDGMENT grant of prospecting licences and mining leases in respect of minerals and for purposes connected therewith'. The opening clause of sub-section (2) of Section 13, namely, 'In particular, and without prejudice to the generality of the foregoing power', makes it clear that the topics set out in that sub- section are already included in the general power conferred by sub- section (1) but are being listed to particularize them and to focus attention on them. The particular matters in respect of which the Central Government can make rules under sub- section (2) of Section 13 are, therefore, also matters with respect to which under sub-section (1) of Section 15 the State Governments can make rules for 'regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith'. When Section 14 directs that 'The provisions of Sections 4 to 13 (inclusive) shall not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals', what is intended is that the matters contained in those sections, so far as they concern minor minerals, will not be controlled by the Central Government but by the concerned State Government by exercising its rule-making power as a delegate of the Central Government. Sections 4 to 12 form a group of sections under the heading 'General restrictions on undertaking prospecting and mining operations'. The exclusion of the application of these sections to minor minerals means that these restrictions will not apply to minor minerals but that it is left to the State Governments to prescribe such restrictions as they think fit by rules made under Section 15(1). The reason for treating minor minerals differently from minerals other than minor minerals is obvious. As seen from the definition of minor minerals given in clause (e) of Section 3, they are minerals which are mostly used in local areas and for local purposes while minerals other than minor minerals are those which are necessary for industrial development on a national scale and for the economy of the country. That is why matters relating to minor minerals have been left by Parliament to the State Governments while reserving matters relating to minerals other Page 125 of 169 C/WPPIL/111/2013 CAV JUDGMENT than minor minerals to the Central Government. Sections 13, 14 and 15 fall in the group of sections which is headed 'Rules for regulating the grant of prospecting licences and mining leases'. These three sections have to be read together. In providing that Section 13 will not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals what was done was to take away from the Central Government the power to make rules in respect of minor minerals and to confer that power by Section 15(1) upon the State Governments. The ambit of the power under Section 13 and under Section 15 is, however, the same, the only difference being that in one case it is the Central Government which exercises the power in respect of minerals other than minor minerals while in the other case it is the State Governments which do so in respect of minor minerals. Sub-section (2) of Section 13 which is illustrative of the general power conferred by Section 13(1) contains sufficient guidelines for the State Governments to follow in framing the rules under Section 15(1), and in the same way, the State Governments have before them the restrictions and other matters provided for in Sections 4 to 12 while framing their own rules under Section 15(1)."
(emphasis supplied) The Supreme Court in the said case has also explained and interpreted the words 'regulation' and 'regulate'. The following observations made by the Supreme Court in paragraphs 81 to 88 are worth noting :
"81. The terms 'regulate' and 'regulation' have been interpreted in large number of judgments. We may notice few of them. In V.S. Rice & Oil Mills v. State of A.P., AIR 1964 SC 1781, agreements for a period of ten years had been executed for supply of electricity and the same did not contain any provision authorising the Government to increase the rates during their operation. However, in exercise of power under Section 3(1) of the Madras Essential Articles Control and Requisitioning (Temporary Page 126 of 169 C/WPPIL/111/2013 CAV JUDGMENT Powers) Act, 1949, the State Government issued order enhancing the agreed rates. The same was challenged on the ground that any increase in agreed tariff was out of the purview of Section 3(1). Chief Justice Gajendragadkar, speaking for the Constitution Bench, observed as under:
"The word regulate is wide enough to confer power on the State to regulate either by increasing the rate, or decreasing the rate, the test being what is it that is necessary or expedient to be done to maintain, increase, or secure supply of the essential articles in question and to arrange for its equitable distribution and its availability at fair prices. The concept of fair prices to which Section 3(1) expressly refers does not mean that the price once fixed must either remain stationary, or must be reduced in order to attract the power to regulate. The power to regulate can be exercised for ensuring the payment of a fair price, and the fixation of a fair price would inevitably depend upon a consideration of all relevant and economic factors which contribute to the determination of such a fair price. If the fair price indicated on a dispassionate consideration of all relevant factors turns out to be higher than the price fixed and prevailing, then the power to regulate the price must necessarily include the power to increase so as to make it fair. Hence the challenge to the validity of orders increasing the agreed tariff rate on the ground that they are outside the purview of Section 3(1) cannot be sustained."
82. In State of Tamil Nadu v. Hind Stone, (1981) 2 SCC 205, this Court held that the word 'regulate' must be interpreted to include 'prohibition' within its fold. Some of the observations made in that judgment (paragraph 10) are extracted below:
"10....We do not think that 'regulation' has that rigidity of meaning as never to take in 'prohibition'. Much depends on the context in which the expression is used in the statute and the object sought to be achieved by the contemplated Page 127 of 169 C/WPPIL/111/2013 CAV JUDGMENT regulation. It was observed by Mathew, J. in G.K. Krishnan v. State of T.N. (1975) 1 SCC 375: The word 'regulation' has no fixed connotation. Its meaning differs according to the nature of the thing to which it is applied.' In modern statutes concerned as they are with economic and social activities, 'regulation' must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector. More so in a welfare State. It was pointed out by the Privy Council in Commonwealth of Australia v. Bank of New South Wales (1949) 2 All ER - and we agree with what was stated therein - that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration and that it could not be laid down that in no circumstances could the exclusion of competition so as to create a monopoly, either in a State or Commonwealth agency, be justified. Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation. The statute with which we are concerned, the Mines and Minerals (Regulation and Development) Act, is aimed, as we have already said more than once, at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present. We have no doubt that the prohibiting of leases in certain cases is part of the regulation contemplated by Section 15 of the Act."
83. In K.Ramanathan v. State of Tamil Nadu, (1985) 2 SCC 116, this Court interpreted the word 'regulation' appearing in Section 3(2)(d) of the Essential Commodities Page 128 of 169 C/WPPIL/111/2013 CAV JUDGMENT Act, 1955 and observed:
"18. The word 'regulation' cannot have any rigid or inflexible meaning as to exclude 'prohibition'. The word 'regulate' is difficult to define as having any precise meaning. It is a word of broad import, having a broad meaning, and is very comprehensive in scope. There is a diversity of opinion as to its meaning and its application to a particular state of facts, some courts giving to the term a somewhat restricted, and others giving to it a liberal, construction. The different shades of meaning are brought out in Corpus Juris Secundum, Vol. 76 at p. 611:
'Regulate' is variously defined as meaning to adjust; to adjust, order, or govern by rule, method, or established mode; to adjust or control by rule, method, or established mode, or governing principles or laws; to govern; to govern by rule; to govern by, or subject to, certain rules or restrictions; to govern or direct according to rule; to control, govern, or direct by rule or regulations.
'Regulate' is also defined as meaning to direct; to direct by rule or restriction; to direct or manage according to certain standards, laws, or rules; to rule; to conduct; to fix or establish; to restrain; to restrict.' (See also: Webster's Third New International Dictionary, Vol. II, p. 1913 and Shorter Oxford Dictionary, Vol. II, 3rd Edn., p. 1784)
19. It has often been said that the power to regulate does not necessarily include the power to prohibit, and ordinarily the word 'regulate' is not synonymous with the word 'prohibit'. This is true in a general sense and in the sense that mere regulation is not the same as absolute prohibition.
At the same time, the power to regulate carries with it full power over the thing subject to Page 129 of 169 C/WPPIL/111/2013 CAV JUDGMENT regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject. It implies the power to rule, direct and control, and involves the adoption of a rule or guiding principle to be followed, or the making of a rule with respect to the subject to be regulated. The power to regulate implies the power to check and may imply the power to prohibit under certain circumstances, as where the best or only efficacious regulation consists of suppression. It would therefore appear that the word 'regulation' cannot have any inflexible meaning as to exclude 'prohibition'. It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation, and the Court must necessarily keep in view the mischief which the legislature seeks to remedy.
20. The question essentially is one of degree and it is impossible to fix any definite point at which 'regulation' ends and 'prohibition' begins. We may illustrate how different minds have differently reacted as to the meaning of the word 'regulate' depending on the context in which it is used and the purpose and object of the legislation. In Slattery v. Nalyor LR (1888) 13 AC 446, the question arose before the Judicial Committee of the Privy Council whether a Bye-law by reason of its prohibiting internment altogether in a particular cemetery, was ultra vires because the Municipal Council had only power of regulating internments whereas the Bye- law totally prohibited them in the cemetery in question, and it was said by Lord Hobhouse, delivering the judgment of the Privy Council:
'A rule or Bye-law cannot be Held as ultra vires merely because it prohibits where empowered to regulate, as regulation often involved prohibition.'
84. In Jiyajeerao Cotton Mills Ltd. v. M.P.Electricity Board, 1989 Supp (2) SCC 52, the validity of the orders providing for higher charges/tariff for electricity Page 130 of 169 C/WPPIL/111/2013 CAV JUDGMENT consumed beyond legally fixed limit was upheld in view of Section 22(b) of the Electricity Act, which permits the State Government to issue an appropriate order for regulating the supply, distribution and consumption of electricity. It was held that the Court while interpreting the expression 'regulate' must necessarily keep in view the object to be achieved and the mischief sought to be remedied. The necessity for issuing the orders arose out of the scarcity of electricity available to the Board for supplying to its customers and, therefore, in this background the demand for higher charges/tariff was held to be a part of a regulatory measure.
85. In Deepak Theatre v. State of Punjab 1992 Supp (1) SCC 684, this Court upheld classification of seats and fixation of rates of admission according to the paying capacity of a cinegoer by observing that the same is an integral part of the power to make regulation and fixation of rates of admission became a legitimate ancillary or incidental power in furtherance of the regulation under the Act.
86. The term 'regulation' was also interpreted in Quarry Owners' Association v. State of Bihar, (2000) 8 SCC 655, in the context of the provisions contained in the Mines and Minerals (Regulation Development) Act, 1957 and it was held:
"31. Returning to the present case we find that the words 'regulation of mines and mineral development' are incorporated both in the Preamble and the Statement of Objects and Reasons of this Act. Before that we find that the Preamble of our Constitution in unequivocal words expresses to secure for our citizens social, economic and political justice. It is in this background and in the context of the provisions of the Act, we have to give the meaning of the word 'regulation'. The word 'regulation' may have a different meaning in a different context but considering it in relation to the economic and social activities including the development and excavation of mines, ecological and environmental factors including States' contribution in developing, manning and controlling such activities, including Page 131 of 169 C/WPPIL/111/2013 CAV JUDGMENT parting with its wealth, viz., the minerals, the fixation of the rate of royalties would also be included within its meaning."
87. Reference in this connection can also be made to the judgment in U.P.Coop. Cane Unions Federation v. West U.P.Sugar Mills Association, (2004) 5 SCC 430. In that case, the Court interpreted the word 'regulation' appearing in U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and observed:
"20...'Regulate' means to control or to adjust by rule or to subject to governing principles. It is a word of broad impact having wide meaning comprehending all facets not only specifically enumerated in the Act, but also embraces within its fold the powers incidental to the regulation envisaged in good faith and its meaning has to be ascertained in the context in which it has been used and the purpose of the statute."
88. It is thus evident that the term 'regulate' is elastic enough to include the power to issue directions or to make regulations and the mere fact that the expression "as may be provided in the regulations" appearing in clauses (vii) and (viii) of Section 11(1)(b) has not been used in other clauses of that sub-section does not mean that the regulations cannot be framed under Section 36(1) on the subjects specified in clauses (i) to (vi) of Section 11(1)(b). In fact, by framing regulations under Section 36, the Authority can facilitate the exercise of functions under various clauses of Section 11(1)(b) including clauses (i) to (vi)."
Mr.Bhatt has placed reliance on three decisions of the Supreme Court in support of his submission on the aspect of delegated legislative powers.
In Vasu Dev Singh and others v. Union of India and others, (2006)12 SCC 753, the appellants were tenants in the Page 132 of 169 C/WPPIL/111/2013 CAV JUDGMENT premises situated within the U.T. Chandigarh and were protected in terms of the East Punjab Urban Rent Restriction Act, 1949. They filed writ petitions before the High Court, questioning the vires of Section 3 of the 1949 Act and also the validity of a notification, directing that its provisions would not apply to building, monthly rent whereof exceeded Rs.1,500=00. The High Court dismissed the said writ petition. Before the Supreme Court, the appellants contended that (i) The Administrator as a delegatee could exercise his power under Section 3 of the Act only in terms of the legislative policy contained therein and not dehors the same and, thus, the impugned notification violated the legislative policy and was unsustainable in law, (ii) Since the power to lay down essential legislative functions vested in the legislature, the same could not be delegated in favour of the Administrator, (iii) by reason of such delegation, the delegatee could not in effect and substance repeal the provisions of the main Act.
On the other hand, the respondent Union of India and the landlords contended that (i) the impugned notification was a conditional legislation and not a delegated legislation, (ii) reasonable classification of 'tenants' and 'tenanted premises' was permissible in terms of Article 14 of the Constitution, (iii) the exemption granted in respect of a building, the rent whereof exceeded Rs.1500, would meet the object of the Act as the philosophy underlying it was to protect only such buildings where only tenants belonging to weaker sections resided, (iv) the impugned notification was a virtual amendment of the existing legislation by the Administrator in compliance with the National Housing Policy, (v) in view of Page 133 of 169 C/WPPIL/111/2013 CAV JUDGMENT certain submissions of the appellants in respect of rent prevalent in 1978, a presumption could be raised that such tenanted premises used to be occupied by the affluent families, those who were paying less than Rs.1500 continued to be protected and, thus, the same would come within the purview of the legislative policy and the object and purport of the Act.
In the facts of that case, the Supreme Court took the view that it was not possible to uphold the contentions of the respondents that the impugned notification was in effect and substance a conditional legislation and not a delegated legislation. The Court further observed that, "the distinction between conditional legislation and delegated legislation was clear and unambiguous. In a conditional legislation the delegatee has to apply the law to an area or to determine the time and manner of carrying it into effect or at such time, as it decides. Delegated legislation, however, involves delegation of rule-making power of legislation and authorises an executive authority to bring in force such an area by reason thereof. The Court further observed that the discretion conferred on the executive by way of delegated legislation was much wider. Such power to make rules or regulations, however, must be exercised within the four corners of the Act. In the facts of that case, the Court was of the view that there was sufficient materials on record to hold that Rs.1500=00 could not have been fixed as the quantum of rent for the purpose of extending the exemption provision under Section 3 of the Act by the Administrator. The Court further observed in the facts of the case that the Administrator, in following the national policy, Page 134 of 169 C/WPPIL/111/2013 CAV JUDGMENT proceeded on the basis that the provisions of the Act must ultimately be repealed. When the repeal provisions were sought to be brought back to the statute book, the Supreme Court held that it had to be done by way of a fresh legislation. In the case at hand, none of the provisions of Chapter V as regards the town planning scheme have been supplanted or substituted or made redundant because of the provisions for providing 40% deduction from the original plot before the grant of the development permission. Section 119(2)(f) read with Sections 12(1) and 12(2)(m) provides enough power for making of the Development Control Regulation to effectuate and implement the declaration of the intention for the town planning scheme and preliminary town planning scheme. Thus, this decision relied upon on behalf of the petitioners is of no assistance to the petitioners in any manner.
In State of Rajasthan and others v. Basant Nahata, (2005)12 SCC 77, the question before the Supreme Court was with regard to the constitutional validity of Section 22A of the Registration Act as amended by the State of Rajasthan as also the notifications issued by it in terms thereof.
The respondent before the Supreme Court had questioned the constitutionality of Section 22A of the Act and the notifications before the Rajasthan High Court by filing a writ petition. The Rajasthan High Court declared Section 22A of the Act (as inserted by the Rajasthan Amendment Act 16 of 1976) as unconstitutional, and consequently, the notifications were also quashed. The High Court held that Section 22A of the Act conferred arbitrary powers on the State Government to Page 135 of 169 C/WPPIL/111/2013 CAV JUDGMENT determine as regards declaring a particular document being opposed to public policy. It was opined by the High Court that the question as to whether a transaction was opposed to public policy or not, could be determined only by the Courts and not by the Sub-Registrars. The High Court further held that the legislation invaded the right of a citizen to deal with the property and thus, was wholly arbitrary and unreasonable. The State of Rajasthan challenged the judgment passed by the High Court before the Supreme Court. The Supreme Court explained the rule of presumption in favour of constitutionality of a statute, and also considered the words 'public policy' and 'opposed to public policy'. Ultimately, the Supreme Court took the view that it was not possible to define public policy with precision at any point of time and it was not for the executive to fill those grey areas as the said power rested with the judiciary. It held further that whenever the interpretation of a concept of 'public policy' was required to be considered, it was for the judiciary to do so, and in doing so, even the power of the judiciary is also very limited. The Supreme Court rejected the contention raised on behalf of the appellants therein that the State, being the higher authority, having been delegated with the power of making declaration in terms of Section 22A of the Act, would not be abused. The Supreme Court held that such a question did not arise therein as the provision had been held to be ultra vires Articles 14 and 246 of the Constitution of India. Thus, so far as this decision of the Supreme Court is concerned, it was in the facts of that case that the issue of delegated legislation was explained by the Supreme Court. So far as the principles of law are concerned, there cannot be any dispute but the same would not be applicable in the facts of the present case. In the present case, whether the impugned Page 136 of 169 C/WPPIL/111/2013 CAV JUDGMENT regulation is opposed to public policy or not, is not the issue involved in the matter. It could not be said in the present case that the decision of the authorities in proposing the impugned regulation to be incorporated in the GDCR is nothing but an arbitrary exercise of the power, violative of any statutory provision of law or any constitutional provision.
In Global Energy Limited and another v. Central Electricity Regulatory Commission, (2009)15 SCC 570, the issue involved before the Supreme Court was regarding the constitutional validity of clauses (b) and (f) of Regulation 6-A of the Central Electricity Regulatory Commission (Procedure, Terms and Conditions for Grant of Trading Licence and Other Related Matters (Amendment) Regulations, 2006. Regulation 6-A was inserted after Regulation 6 of the principal regulations. Regulation 6-A read as under :
"6A. Disqualifications: The applicant shall not be qualified for grant of licence for inter-state trading, if:
(a) ........
(b) The applicant, or any of his partners, or promoters, or Directors or Associates is involved in any legal proceedings, and in the opinion of the Commission grant of licence in the circumstances, may adversely affect the interest of the electricity sector or of the consumers; or
(c) ..........
(d) ..........
(e) ..........
(f) The applicant is not considered a fit and proper person for the grant of licence for any other reason to be recorded in writing;Page 137 of 169 C/WPPIL/111/2013 CAV JUDGMENT
Explanation: For the purpose of determining as to whether the applicant is a `fit and proper person', the Commission may take account of any consideration, as it deems fit, including but not limited to the following, namely:-
(i) financial integrity of the applicant;
(ii) his competence;
(iii) his reputation and character; and
(iv) his efficiency and honesty."
The Supreme Court took the view that the said provision was imperative in character and was couched in a negative language as it provided for disqualification. The Supreme Court held that a subordinate legislation should be read in the context of the Act, and if read accordingly, then Regulation 6-A should be construed in terms of the requirements contained in Section 52 of the Act, namely, technical requirement, capital adequacy, requirement and creditworthiness for being an electricity trader. In the facts of that case, the Supreme Court took the view that the rule-making power 'for carrying out the purposes of the Act' was a general delegation. Such a general delegation may not be held to be laying down any guidelines.
The Court further held that by reason of such a provision alone, the regulation making power could not be exercised so as to bring into existence substantive rights or obligations or disabilities which were not contemplated in terms of the provision of the said Act. The power of the regulation making authority must be interpreted keeping in view the provisions of the Act. In the facts of that case, the Court held that the Act was silent as regards the conditions for grant of license and did Page 138 of 169 C/WPPIL/111/2013 CAV JUDGMENT not lay down any prequalification therefor. The Court further held that the factors enumerated in the Explanation appended to clause (f) of Regulation 6-A were unlimited. The Court observed that clause (b) of Regulation 6-A provided for disqualification only on the ground of involvement of the applicant or any of its promoters, partners, directors, associates, etc. in any legal proceeding and, therefore, the same may or may not by itself be sufficient to disqualify a person. Thus, in the peculiar facts of the case, clauses (b) and
(f) or Regulation 6-A were declared ultra vires the Constitution of India as also the Act. In our opinion, this decision is also of no avail to the petitioners. In the present case, it cannot be said that by exercising the regulation-making power under Section 119 of the TP Act any substantive rights of the plot owner have been infringed or any obligations or disabilities not contemplated in terms of the provisions of the Act have been created. The proposed regulation does not provide for transfer of possession nor does it restrain transferability nor does it provide for vesting of the title in the authority. It is not reservation or acquisition but could be termed as a reasonable restriction in order to control haphazard development which is being undertaken by the developers in the absence of any regulation.
We are of the opinion that the question, whether a particular piece of legislation - whether a rule or regulation or other type of statutory instrument - is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provision contained in the relevant statute conferring the power to make Page 139 of 169 C/WPPIL/111/2013 CAV JUDGMENT the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. So long as the authority entrusted with the task of framing the regulations within the scope of the authority conferred on it, in the sense that the regulations made by it have a rational nexus with the object and purpose of the statute, it is not within the legitimate domain of the Court to determine, whether the purpose of a statute can be served better by adopting any policy different from what has been laid down by the Legislature or its delegate. The Legislature and its delegates are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act for its efficacious implementation. Any drawbacks in the policy incorporated in a regulation will not render it ultra vires and there is no scope for interference by a Court unless a particular provision impugned before it can be said to suffer from any serious legal infirmity, in the sense of it being wholly beyond the scope of the regulation-making power or it being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.
The above takes us to deal with the third contention of Mr.Bhatt as regards the power to reserve the land once the designation lapses under Section 20 of the Act.
All the learned counsel appearing on behalf of the petitioners have very strenuously contended before us that there is no guideline for prescribing the impugned regulation either in Section 12(m) of the Act or in Section 119 of the Act Page 140 of 169 C/WPPIL/111/2013 CAV JUDGMENT or in any other provision of the Act including the preamble of the Town Planning Act. It has been submitted that while implementing the Town Planning Scheme under the Town Planning Act, the authority would require land for public purpose. The Town Planning Act recognizes only two modes by which a citizen can be deprived of his land i.e. by reservation of land and/or by acquisition of land. It is submitted that during the operation of the development plan, without any restriction of percentage, the land can be reserved for every possible public purpose under Section 12 of the Act and the land so designated can be acquired within a period of ten years. The land owner has an option thereafter to issue a statutory notice of six months if the land is not acquired within the period of ten years, and even after the issue of the statutory notice if the land is not acquired by the authority, then it would stand released from the reservation. The submission before us is that in the present case the owner of the land would have to wait for an indefinite period of time i.e. till the intention to frame the Town Planning Scheme is declared. Till then, the owner will not be able to utilize the land. By relying on a Division Bench decision of this Court in the case of Ahmedabad Green Belt Khedut Mandal (supra), it has been submitted that if the impugned regulation is allowed to stand, then the effect of the same would be that even after lapse of ten years if the land is released from reservation, the owner of the land will have to again set apart 35% to 40% for public purpose. This, according to the learned counsel, would be contrary to the dictum of law declared by the Division Bench of this Court in the case referred to above.
Page 141 of 169 C/WPPIL/111/2013 CAV JUDGMENTWe are afraid, we are unable to accept this contention as the decision of this Court on which reliance has been placed has been overruled by the Supreme Court vide judgment and order dated 9th May 2014 rendered in Civil Appeal Nos.1542-44 of 2001 and other allied matters. We quote with profit the following observations made by the Supreme Court :
"13. The main issue involved herein is whether after the lapse of the period for reservation as per Section 20(2) of the Act 1976, can the said land be again acquired by resorting to the provisions of Section 40 of the Act 1976. In the present case, the State Government had sanctioned a development plan on 2.11.1987 which came into force on 3.12.1987 wherein the area known as the "green belt" was reserved for "public housing for different government organizations". The said area was deemed to be de-reserved by virtue of the provisions of Section 20 after the expiry of a period of 10 years. Despite the respondents having served the six months' notice, the said land was still not acquired by the government. It has been submitted on behalf of the respondents that having regard to the provisions of Section 20 read with Section 40 of the Act 1976, the said land could not be re-acquired/re-designated by framing a town planning scheme. Section 48- A of the Act 1976 provides for vesting of land in the appropriate authority. However, the said section does not cover the requirement under Section 40(3)(jj)(a) of the Act. It has been further argued that the other relevant provision is Section 107 of the Act 1976 which provides that land needed for a town planning scheme shall be deemed to be land needed for a public purpose within the meaning of the Act 1894. Therefore, without invoking the provisions of the Act 1894, the said land could not be re- notified under Section 40 of the Act 1976.
29. So far as the question that upon lapsing of designation under the development plan under Section 20 there cannot be any reservation/designation under a town planning scheme for the same land, is to be understood reading the provisions of the Act 1976 Page 142 of 169 C/WPPIL/111/2013 CAV JUDGMENT cogently. The development plan is prepared under Chapter II and town planning scheme is made under Chapter V. Therefore, they are two different things. The development plan is a macro plan for a vast area wherein a town planning scheme is minor scheme within the town. Section 40(1) simply provides that in the making of town planning scheme the authority has to have regard to the final development of the plan, if any. Thus, the words "having regard to the development plan" in Section 40 means that town planning scheme cannot disregard or ignore the designation/reservation made in the development plan.
Under Section 20 of the Act, it is provided that if an acquisition does not take place by agreement or under the Act 1894, in respect of certain lands designated in the final development plan for the six purposes mentioned in sub-section (2) of Section 12 within a period of 10 years from the coming into force of the final development plan, the designation of the land under these clauses shall be deemed to have lapsed. Therefore, the provision for lapsing of the designation of the land does not take it out of the purview of town planning scheme and such a provision does not prevent the making of a provision in a town planning scheme for any reservation specified in Section 40(3). If the judgment of the High Court on this issue is approved, the town planning scheme would be impermissible. Thus, even after the lapse of designation of the land under Section 20, a town planning scheme will have to include the land for roads, open spaces, gardens under Section 40(3)(e), reservation of land for accommodation to members of socially and economically backward classes of people under Clause 40(3)(j) but not for items mentioned in Section 40(3)(jj)(a) would lead to absurdity.
30. Section 40(3)(jj) only regulates discretion of the Area Development Authority (ADA) while making the draft development plan. The land acquired under Section 20 read with Section 12 of the Act 1976 would need infrastructural facility and the original plot which is acquired would require to be re-constituted as a final plot Page 143 of 169 C/WPPIL/111/2013 CAV JUDGMENT and to make a building site. The settled legal proposition in respect of interpretation of statute is that the provisions of the Act have to be read as a whole and therefore the provision of Section 40(3)(jj)(a)(iv) for sale has to be read inconsonance/conjointly with the other statutory provisions and not in isolation. The sale upto the extent of 15% is from the total area covered under the scheme and not in respect of every plot of land. In order to generate financial resources for the development of infrastructure, the saleable plot for residential, commercial and industrial use are allotted by the appropriate authority. Similarly, while re-constituting the plots, final plot is offered to the original owner for its beneficial use.
31. The High Court has committed an error in interpreting the provisions under challenge as it failed to appreciate that the provisions of the Town Planning Scheme in Chapter-V, no where indicate that the lands under Section 20 cannot be subject matter of the Town Planning Scheme. The interpretation given by the High Court tantamounts to rewriting the provisions of the Act 1976 as the High Court has held that the land under Section 20 cannot be the subject of Section 40(3)(jj). Section 40(3)(jj)(a) only illustrates and provides the guidance to the authority.
32. So far as the observation made by this Court in Bhavnagar University (supra) is concerned, the court held that the land which has been de-reserved under Section 20 cannot be subject matter of revised development plan under Section 20(1). However, the issue involved in that case was in respect of applicability of Section 40 while framing the scheme, and this court had not dealt with the provisions of the scheme under Chapter-V of the Act.
37. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and Page 144 of 169 C/WPPIL/111/2013 CAV JUDGMENT grammatical meaning to every word of the provisions if the language used therein is unequivocal. (See: The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529; Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659; and Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC 30).
38. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility.
39. In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law."
Apropos the contention which we have dealt with, our attention has been drawn by Mr.Shelat, the learned senior advocate appearing for the Vadodara Municipal Corporation to a decision of the Supreme Court in the case of K.L.Gupte and others v. The Municipal Corporation of Greater Bombay, AIR 1968 SC 303. In the case before the Supreme Court, the constitutional validity of certain sections of the Bombay Town Planning Act, 1954 were challenged. It was argued before the Supreme Court that by the combined operation of Sections 4 and 11(3) of the Act the legal authority could easily delay the acquisition of any land designated for public purpose under Page 145 of 169 C/WPPIL/111/2013 CAV JUDGMENT Section 7 of the Act for fourteen years, and if resort was had to powers under Section 17 of revising the development plan at the end of the period of fourteen years, the provisions of Sections 4 to 16 would again become operative with the result that the acquisition might be delayed for a further period of ten years.
While repelling such contention, the Supreme Court made the following observations, which are worth noting and support the case of the respondents while defending the validity of the regulation :
"26. In our opinion, the argument though at first sight forceful cannot be accepted. As already noted, a development plan for an area like Greater Bombay cannot be chalked out or put in blueprint in the space of a few months. We have seen that in order to perform this enormous task an Advisory Committee composed of representatives of various public bodies was formed to advise the Municipality with respect thereto and the public were freely invited to take part therein. Before anything could be done, a survey of the area had to be made and a map thereof prepared. Such a map would show the already existing industrial areas, public amenities, roads and bridges and would give anybody wishing to find out some idea as to the lines on which the development of the city should proceed. One would then have to take into consideration the existing roads, industrial establishments and public amenities already there because the plan as emerging finally could not be made on a clean slate but had to take into account already existing things and the difficulties which would have to be met and overcome when different parts of the area were to be earmarked for special purpose. Plans for various Sections of Greater Bombay were prepared with the assistance of the Advisory Committee. The tentative development plans in this case were displayed for public inspection during the year l960-6l. Within a space of two Page 146 of 169 C/WPPIL/111/2013 CAV JUDGMENT years, therefore, the local authority had some guidance in the matter of granting or refusing a commencement certificate for development work of any land proposed to be taken up by any of the petitioners. A reference to the tentative plans would show whether the area within which the development work was proposed to be carried on was set apart for Industrial, commercial, residential or agricultural purposes, or whether it was to be set apart for public purposes. It might be that as a result of the modification of the tentative plan, the area which at first fell under the designation "residential" came to be included in the area designated as "industrial" or even came to be embraced for designation for a public purpose."
"28. We may in this connection refer to a judgment of this Court in Jyoti Pershad v. Administration for the Union Territory of Delhi, (l962) 2 SCR 125 = AIR 1981 SC 1602. The facts in that case were as follows. The petitioner who was the owner of a house containing several rooms let out to different individuals, desired to demolish the same and reconstruct it. He submitted a plan to the Council of the Delhi Municipal Committee and applied for sanction for the reconstruction of the house. After the sanction of the plan, he filed suits for eviction of nine tenants under Section 13 (1) (g) of the Delhi and Ajmer Rent Control Act 38 of 1952. In order to succeed in the suits he had to show that he had a plan sanctioned by the municipal authorities which made provision for the tenants then in occupation of the house being accommodated in the house as reconstructed and that he had the necessary funds to carry out the reconstruction. The petitioner had no difficulty in establishing these and he succeeded in getting decrees for eviction. The tenants however refused to give up possession and went up in appeal. Ultimately, however, the petitioner succeeded in the appeals filed by the tenants. Meanwhile, the Slum Areas (Improvement and Clearance) Act 96 of 1956 was enacted by Parliament and came into force in the Delhi area. Section 19 (1) of that Act provided that :
"Notwithstanding anything contained in any other law for the time being in force, no person who has obtained any decree or order for the eviction of a Page 147 of 169 C/WPPIL/111/2013 CAV JUDGMENT tenant from any building in a slum area shall he entitled to execute such decree or order except with the previous permission in writing of the competent authority."
Under sub-section (2) every person desiring to obtain the permission referred to in sub-section (I) shall make an application in writing to the competent authority giving particulars as may be prescribed. Under sub-section (3), the competent authority was bound to make a summary enquiry after giving an opportunity to the tenant of being heard and then by order in writing either grant or refuse to grant it. Under sub-section (4) the competent authority must record a statement showing brief reasons for such refusal. The petitioner's application under Section l9 was turned down by the competent authority on the ground that the house was not in such a condition that it called for demolition and if sanction was given the tenants would be thrown out and it would be impossible for them to get accommodation in the reconstructed building as they were very poor and not likely to be able to pay the enhanced rent in respect of rooms in Delhi. The appeal by the petitioner to the Union Territory was dismissed mainly on the ground that if the appeal was allowed a large number of poor tenants from slum areas would be evicted and as the property itself was not in a dilapidated condition and declared unfit for human habitation, permission to evict the tenants could not be given. The petitioner then moved this Court for the issue of a writ of certiorari to quash these orders. His complaint was that Section 19 of the Act was invalid and unconstitutional and violated the petitioner's rights guaranteed by Articles 14 and 19 (l) (f) of the Constitution. There it was argued that Section 19 (3) of the Act vested an unguided, unfettered and uncontrolled power in an executive officer to withhold permission to execute a decree which a landlord had obtained after satisfying the reasonable requirements of law as enacted in the Rent Control Act. It was further urged that neither Section 19 of the Act nor any other provision of it indicated the grounds on which the competent authority might grant or withhold permission to execute decrees and the power conferred was therefore arbitrary and offended Article 14 of the Constitution. It was further urged that there was an excessive delegation of legislative power as the Page 148 of 169 C/WPPIL/111/2013 CAV JUDGMENT executive authority could at its sweet will and pleasure disregard rights to property without any guidance from the legislature. A point was further raised that such refusal might go on for an indefinite and indeterminate period of time affecting the petitioner's right to enjoy his property and imposing an excessive and unreasonable restraint on his right. The import and scope of Article 14 of the Constitution was examined in this case at some length. The Court examined the provisions of the Slum Areas (Improvement and Clearance) Act and noted that the process of slum clearance and re-development would have to be carried out in an orderly fashion if the purpose of the Act was to be fulfilled and the policy behind it, viz., the establishment of slum dwellers in healthier and more comfortable tenements so as to improve the health and morals of the community, was to be achieved. Chapter VI of the Act which was headed "Protection of tenants in Slum Areas from Eviction" read in the light of the other provisions of the Act made it clear that it was necessary to allow the slum dwellers to remain in their dwellings until provision was made for a better life for them elsewhere. It was said :
"Though therefore the Act fixes no time limit during which alone the restraint on eviction is to operate, it is clear from the policy and purpose of the enactment and the object which it seeks to achieve that this restriction would only be for a period which would be determined by the speed with which the authorities are able to make other provisions for affording the slum dweller tenants better living conditions. The Act, no doubt, looks at the problem not from the point of view of the landlord, his needs, the money he has sunk in the house and the possible profit that he might make if the house were either let to other tenants or was reconstructed and let out, but rather from the point of view of the tenants who have no alternative accommodation and who would be stranded in the open if an order for eviction were passed."
Taking into consideration the entire provisions of the Act, the Court observed :
Page 149 of 169 C/WPPIL/111/2013 CAV JUDGMENT"In view of the foregoing we consider that there is enough guidance to the competent authority in the use of his discretion under Section 19 (l) of the Act and we, therefore, reject the contention that Sec. 19 is obnoxious to the equal protection of laws guaranteed by Art. 14 of the Constitution. We need only add that it was not, and could not be, disputed that the guidance which we have held could be derived from the enactment, and that it bears a reasonable and rational relationship to the object to be attained by the Act and; in fact would fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings."
The further objection that Parliament when enacting the Act could easily have indicated with reference to the several grounds on which eviction could be had under the Rent Control Act, the additional restrictions or further conditions which would be taken into account by the competent authority, was met by saying :
"In the context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provision for them. The Legislature therefore is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act ...........So long therefore as the legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law affords no basis either for the contention that there has been excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power of discretion has been conferred in a manner which is legal and Page 150 of 169 C/WPPIL/111/2013 CAV JUDGMENT constitutional, the fact that Parliament could possibly have made more detailed provisions could obviously not be a ground for invalidating the law."
The other objection in that case that the power vested in the competent authority at its sweet will and pleasure to refuse permission to execute a decree for eviction violated that right to hold property under Art. 19 (1) (f) of the Constitution, on the ground that there were no principles in the Act itself to guide the competent authority in the exercise of his will and pleasure was met by saying that the restrictions imposed could not be held to be unreasonable as "the ban imposed on eviction is temporary though its duration is not definite. In the very nature of things the period when slums would have ceased to exist or restrictions placed upon owners of property could be completely lifted must, obviously be indefinite and therefore the indefiniteness cannot be a ground for invalidity-a ground upon which the restriction could be held to be unreasonable."
It was further said that in considering the reasonableness of the restriction :
"one has to take into account the fact-a fact of which judicial notice has to be taken-that there has been an unprecedented influx of population into the capital, and in such a short interval, that there has not been time for natural processes of expansion of the city to adjust itself to the increased needs.
Remedies which in normal times might be considered an unreasonable restriction on the right to hold property would not bear that aspect or be so considered when viewed in a situation of emergency brought about by exceptional and unprecedented circumstances. Just as pulling down a building to prevent the spread of flames would be reasonable in the event of a fire, the reasonableness of the restrictions imposed by the impugned legislation has to be judged in the light of actual facts and not on a priori Page 151 of 169 C/WPPIL/111/2013 CAV JUDGMENT reasoning based on the dicta in decisions rendered in situations bearing not even the remotest resemblance to that which presented itself to Parliament when the legislation now impugned was enacted."
ARTICLE 300-A OF THE CONSTITUTION :
The above takes us to deal with the fourth contention regarding the infringement of Article 300-A of the Constitution of India as, according to the petitioners, the restrictions sought to be imposed upon by the impugned regulation would amount to deprivation of property.
We are afraid, we do not find any merit even in this submission canvassed on behalf of the petitioners. The phrase 'deprivation of a property of a person' must be considered in the fact situation of a case. Deprivation connotes different concepts. In view of the commencement of the Forty-fourth Amendment of the Constitution with effect from 20 th June 1979, whereby Articles 31(2) and 19(1)(g) have been deleted, there is no fundamental right now to hold property. Article 300- A of the Constitution of India although creates a human right being a constitutional provision, yet is not a fundamental right. Article 300-A provides that no person can be deprived of his property except by authority of law. The Town Planning Act is definitely an authority of law by which a person is deprived of his property. The impugned regulation is definitely for public purpose and public amenities. The question is, whether such a regulation would amount to deprivation of property within the meaning of Article 300-A of the Constitution of India. We have Page 152 of 169 C/WPPIL/111/2013 CAV JUDGMENT already discussed in the early part of our judgment that there is a power to frame such a regulation.
The scope of Article 300-A read with Article 19(1)(f) came up for consideration before the Supreme Court in the case of Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and others, (2007)8 SCC 705. The Supreme Court held that right to property is a human right and a constitutional right, but not a fundamental right, and held that every claim to property is not a property right, and control of property short of deprivation, does not entail payment of compensation. The Supreme Court followed the judgment of the Zimbabwe Supreme Court in Davies and others v. Minister of Land, Agriculture and Water Development, [(1997) 1 LRC 123 (Zim SC)], wherein it was held that the State as a sovereign had the power of eminent domain and, therefore, has the right to take private property for public use at any time without having to pay compensation, unless it is supported by enactment. The Supreme Court in the aforementioned judgment took the view that control of property short of deprivation, does not entail payment of compensation. In Chairman, Indore Vikas Pradhikaran (supra), the Supreme Court took the view that right to property is a legal right, and the person can be deprived by his property in accordance with law.
In this connection, we may also refer to the judgment of the Supreme Court in Jilubhai Nanbhai Khachar and others v. State of Gujarat and another, (1995 Supp (1) SCC 596), wherein the Supreme Court interpreted the provisions 'taking Page 153 of 169 C/WPPIL/111/2013 CAV JUDGMENT possession of', 'acquired' and 'deprivation', and took the view that the word 'law' used in Article 300-A must be an Act of Parliament or State Legislature, a rule or statutory order, having force of law. The Court held that deprivation of property shall be only by authority of law, an Act of Parliament or State Legislature, but not by an executive fiat or an order.
So far as the present case is concerned, there is no question of deprivation of property. We once again at the cost of repetition state that the regulation by which the owner of a land is asked to set apart 35% to 40% of the land at the time of seeking development permission till the intention to frame the Town Planning Scheme is declared does not amount to reservation of land which has to be acquired under Section 20 of the Act. Section 20 provides for acquisition of land for the land reserved by the authority and no other land. Therefore, we find it difficult to take the view that such restriction amounts to deprivation of property within the meaning of Article 300-A of the Constitution of India.
Freezing of land :
At this stage, we may also deal with the submission very strenuously contended before us that if the impugned regulation is allowed to stand, it will amount to freezing of the land.
It appears that this contention of freezing of land is on the basis of the decision of the Supreme Court in the case of Page 154 of 169 C/WPPIL/111/2013 CAV JUDGMENT Chairman, Indore Vikas Pradhikaran (supra). In the said case before the Supreme Court, the issue raised was, whether the appellate authority could have declared its intention to frame a town planning scheme in terms of Section 50 of the Act before the development attained finality. Having regard to the provisions of the Act with which the Supreme Court was dealing with and in the facts of the case, the Court took the view considering the provisions of Sections 17 and 49 of the Act that it was the development plan which determine the manner of usage of the land and the town development scheme enumerated the manner in which such proposed usage could be implemented. The Court observed that it would follow that until the usage was determined through a development plan, the stage of manner of implementation of such proposed usage could not be brought about. The Court took the view that it would necessarily follow that what was contemplated was the final development plan and not a draft development plan, since only the development plan was finalized it would have no statutory or legal force and the land used as existing prior thereto with the rights of usage of the land arising therefrom would continue. The Court held further that to accept that it was open to the Town Development Authority to declare an intention to formulate a town development scheme even without a development plan and ipso facto bring into play a freeze on usage of the land under Section 53 would lead to complete exercise of power and arbitrary exercise thereof depriving a citizen of his right to use the land subject to the permitted land use and laws relating to the manner of usage thereof. In such circumstances, the Court held that it would be an unlawful deprivation of the citizens' right to property, which right includes within it, the right to use Page 155 of 169 C/WPPIL/111/2013 CAV JUDGMENT the property in accordance with law as it stood at such time.
Thus, having regard to the provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973, the Supreme Court decided the case. The most important distinguishing feature is that the provisions prevailing in the State of Madhya Pradesh i.e. the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 vis-a-vis the provisions of the Town Planning Act with which we are concerned are altogether differently worded. We do not find any provision like Section 12(a)(m) of the Town Planning Act in the provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973, and that makes all the difference. Section 12(2)(m) on the other hand makes a provision for controlling and regulating the use and development of land within the development area and also empowers the authority to frame regulations as may be considered necessary for carrying out the objects of the Act.
On behalf of the petitioners, strong reliance has been placed on the decision of the Supreme Court in the case of Raju S.Jethmalani and others v. State of Maharashtra and others, (2005)11 SCC 222. In the said case, the Supreme Court observed as under :
"It is true that a Development Plan can be prepared of a land comprising of a private person but that plan cannot be implemented till the land belonging to the private person is acquired by the Planning authority. It is not that the Planning authority was ignorant of this fact. It acquired some land from Plot No.437 for developing garden but the land from plot No.438 was not acquired for garden. Therefore, the question is whether the Government can prepare a development plan and Page 156 of 169 C/WPPIL/111/2013 CAV JUDGMENT deprive the owner of the land from using that land ? There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property. We quite appreciate the interest of the residents of that area that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. In order to provide such amenities to the residents of the area private land can be acquired in order to effectuate their public purpose but without acquiring the private land the Government cannot deprive the owner of the land from using that land for residential purpose. In the present case, it is clear that Plot No.438 belonged to the private person and it was shown as a garden in the development plan of 1966. But no effort was made by the Municipal Corporation or the Government to acquire this plot for the purpose of developing it as a garden. When it was not acquired for the purpose of garden, the owner of this land i.e. the appellants moved the Government for de- reserving this land and the Government after resorting to necessary formalities de-reserved the land by the impugned notification. All the procedures which were required under the 1966 Act were observed, the notification was issued inviting objections against de- reservation. No objection was filed by the residents of the area and ultimately a proposal was put up before the Municipal Council it also resolved that Municipal Council is not in a position to acquire the land because of the financial crunch and accordingly, the Government was intimated. Government accordingly de-reserved it and consequently, issued the impugned notification dated February 12, 1993. When finally the notification came to be published on February 12, 1993 the residents of the area woke up and brought about this public interest litigation. Section 37 of the 1966 Act empowers the Government for modification of the final development plan. It lays down that where a modification of any part of or any proposal made in a final Development plan is of such a nature that it will not change the character of such Development plan, the Planning Authority may or when so directed by the State Government shall within sixty days from the date of such direction, publish a notice in the Official Gazette and in such other manner as Page 157 of 169 C/WPPIL/111/2013 CAV JUDGMENT may be determined by inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification with amendments if any, to the State Government for sanction and if the Planning authority fails to issue the notice as directed by the State Government, the State Government shall issue the notice, and thereafter modification can be issued by the State Government. Therefore, all the formalities required under the law were complied with by the authorities. In fact, the public spirited persons who have filed the public interest litigation did not file any objection to the proposed de-reservation of the area. The High Court after hearing both the parties felt persuaded because of the decision rendered by this Court in the case of Bangalore Medical Trust (supra). But with great respect the Division Bench of the High Court of Bombay did not examine the matter very closely whether the provisions of the Bangalore Development Authority Act, 1976 and that of the Maharashtra Regional and Town Planning Act, 1966 are pari materia or not. In the case of Bangalore Medical Trust, the open space reserved for park under the development scheme was converted in to a Hospital in favour of a private body by the Development authority at the instance of the Chief Minister of the State. Therefore, this Court examined the provisions of the Bangalore Development Authority Act, 1976 and after considering all those provisions, this Court held that this unilateral act of the Bangalore Development Authority at the instance of the Chief Minister of the State cannot be countenanced. In that case, the area was reserved for park and play-ground. Section 38-A of the Bangalore Development Authority Act, 1976 specifically prohibited that the authority shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and civic amenities for any other purpose and any disposition so made shall be null and void. Firstly, there is no such provision under the Maharashtra Regional and Town Planning Act, 1966 and secondly, the area which is earmarked for the purpose of park and playground was not owned by a private person. In the present case, though the development plan has been prepared in the year 1966 and the area has been earmarked for the Page 158 of 169 C/WPPIL/111/2013 CAV JUDGMENT purpose of garden but no proceeding for acquisition of the present plot was ever initiated by the respondent- Municipal Corporation or by the State Government. There is no prohibition for preparing the development plan comprising of private land but that plan cannot be implemented unless the said private land is acquired by the Government for development purpose. In the present case, the area comprising in the plot No.438 belonged to the appellants and that no steps were taken to acquire the said land by the State Government or by the Municipal Corporation of Pune and the Municipal Corporation had already expressed their inability to acquire that land and therefore, the said land has been de-reserved by the State Government. Therefore, the present case has no semblance with that of the Bangalore Medical Trust case (supra). The question is whether without acquiring the land can the Government deprive a person of his use of the land ? This in our opinion, cannot be done. It would have been possible for the Municipal Corporation and the Government of Maharashtra to acquire the land in order to provide civic amenities. But the land in question has not been acquired. We are quite conscious of the fact that the open park and garden are necessary for the residents of the area. But at the same time we cannot loose sight of the fact that a citizen is deprived of his rights without following proper procedure of law. The period of deferring the quashing of the de-reservation notification for two years by the High Court was perhaps to allow the Government or the Municipal Corporation of Pune to muster up funds so as to acquire the same. But earnest hope was frustrated when no step was taken by the Municipal Corporation. The direction given by the High Court of Bombay that within this period if the respondents ( the present appellants ) provide necessary area, approximate in size, suitable for the purposes of garden and park as envisaged in the Development plan to the satisfaction of the Planning authority, quashing and setting aside of the impugned notification will not be operative. We fail to understand how can the burden be placed on the appellants that they should provide suitable area in the present locality for using the same as garden or park. Rather, the burden should have been placed on the Municipal Corporation or the State Government instead of putting it on the appellants that they must provide some space for garden and park."Page 159 of 169 C/WPPIL/111/2013 CAV JUDGMENT
Relying on the aforesaid observations made by the Supreme Court in the facts of that case, it has been strenuously contended before us that when actually acquiring the land, the authorities are not within their powers to frame a regulation by which the owner of the land has to compulsorily set apart 35% to 40% of his land if he seeks development permission from the authorities, at the stage of development plan.
We are afraid, this decision is of no assistance to the petitioners and some of the observations made by the Supreme Court have been torn out of context. The Supreme Court was concerned with a plot of land reserved for a garden in a development plan for the purpose of promoting ecology and congenial environment. However, at a later stage, the Government of Maharashtra received a report from the Municipal Corporation of Pune that they were not in a position to acquire the said plot for the purpose of garden. In such circumstances, the State Government de-reserved the same by issuing a notification. The action on the part of the Government in de-reserving the plot which was reserved for the purpose of garden was challenged by way of a public interest litigation contending that once the land is earmarked for a particular purpose for promoting environmental exigencies, the same could not have been de-reserved. It was in that context that the Court observed that in order to provide amenities to the residents, private land can be acquired to effectuate the public purpose. But, when acquiring the same, the Government cannot deprive the owner of the land from Page 160 of 169 C/WPPIL/111/2013 CAV JUDGMENT using the same for residential purpose. In the case at hand, neither we are concerned with acquisition nor reservation and we have explained this very exhaustively. The impugned regulation imposes a restriction upon the owner of the land to set apart 35% to 40% of his land if at all he seeks development permission for the same, and such regulations, as we have explained, is with the avowed object of having planned development to meet with the future exigencies.
Reliance has also been placed on the decision of the Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mill Private Limited and others, (2003)2 SCC 111. This decision has been relied upon mainly to make good two submissions (i) that an owner of a property, subject to reasonable restrictions which may be imposed by the Legislature, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner, or in other words, a restriction imposed on the user thereof except in a mode or a manner laid down under a statute, should not be presumed; and (ii) when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities, while acting under a statute, are only a creator of a statute, they must act within the four corners thereof. In so far as the proposition of law sought to be canvassed by the petitioners is concerned, there cannot be any dispute. In Bhavnagar University (supra), the Court held that the land which had been de-reserved under Section 20 could not be a subject matter of a revised development plan under Section 20(1) of the Act. The issue involved in that case was in respect of applicability Page 161 of 169 C/WPPIL/111/2013 CAV JUDGMENT of Section 40 while framing the scheme.
As discussed by us, the restriction which is sought to be imposed by way of the impugned regulation cannot in any manner be termed as unreasonable restriction or contrary to the provisions of law. The regulation has been framed in accordance with law with a definite object in mind i.e. planned development.
The learned counsel appearing for the petitioners have also very strenuously contended before us that there is no guidelines prescribing the impugned regulations either in Section 12(m) or in Section 119 or in any other section or even in the preamble of the Town Planning Act. We are not impressed even by this submission as catena of decisions of the Supreme Court has taken the view that inspite of very wide power being conferred on a delegatee that such a section would still not be ultra vires, if guideline could be gathered from the Preamble, Object and Reasons and other provisions of the Acts and the Rules. In testing validity of such provision, the courts have to discover, whether there is any legislative policy purpose of the statute or indication of any clear will through its various provisions, if there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalised. The exercise of power of such delegatee is controlled through such policy. In the fast changing scenario of economic, social order with scientific development spawns innumerable situations which Legislature possibly could not foresee, so delegatee is entrusted with power to meet such Page 162 of 169 C/WPPIL/111/2013 CAV JUDGMENT exigencies within the in built check or guidance and in the present case to be within the declared policy. So delegatee has to exercise its powers within this controlled path to subserve the policy and to achieve the objectives of the Act. A situation may arise, in some cases where strict adherence to any provision of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially effecting the policy of the Act, viz., development in the present case then such exercise of power would be covered under it. All situation cannot be culled out which has to be judiciously judged and exercised, to meet any such great hardship of any individual or institution or conversely in the interest of society at large. ( vide Consumer Action Group and another v. State of T.N., AIR 2000 SC 3060) In this background we find the preamble of the Act laid down :
"An Act to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat."
The preamble clearly spells out policy which is for planning and development of the use of the land in the State.
There is a clear distinction between a provision to be ultra vires as delegation of power being excessive and the exercise of power by such delegatee to be arbitrary or illegal. Once the delegation of power is held to be valid, the only other question left for our consideration would be, whether the power exercised by the Government in proposing the Page 163 of 169 C/WPPIL/111/2013 CAV JUDGMENT impugned regulation under Section 119 of the Act could be said to be arbitrary or illegal.
We have answered this question exhaustively taking the view that the regulation proposed in the GDCR in no manner could be termed as arbitrary or illegal.
It has been very strenuously contended before us on behalf of the petitioners that the very object with which the impugned regulation has been proposed in the GDCR is not likely to be subserved and the whole idea in the mind of the authorities is absurd. According to the learned counsel appearing on behalf of the petitioners, the applicability of the impugned regulation even so far as the small plot holders are concerned, will not serve the purpose which is in the mind of the authorities. The learned counsel have given us an example to explain this submission. According to the learned counsel, in a society if the small plot holders are asked to set apart 40% of the total area of the land at the time of seeking development permission, then in what manner the area of that 40% of the individual plot would help the authorities in framing an effective town planning which may be introduced in future.
We are afraid, we are not able to accept such submission canvassed on behalf of the petitioners for the simple reason that we are not experts in the field of town planning. To certify the impugned regulation as an absurd regulation will be too much. It is not that overnight such regulation has been proposed in the GDCR. Many experts in the field must have Page 164 of 169 C/WPPIL/111/2013 CAV JUDGMENT applied their minds and thereafter must have reached to this conclusion that such a regulation is now very much imperative in the present day scenario of expanding population and industrial development taking place in and around the cities which, in its turn, is attracting people from outside. Most of our towns and cities have grown up without any planning with the result that public amenities therein are now being found to be wholly inadequate for the already enlarged and still expanding population. The roads are too narrow for modern vehicular traffic. The drainage system, such as it obtains in most of the towns and cities, is hopelessly inadequate to cope with the requirements of an already overgrown population. The best example we can give is the problems in Bopal so far as the city of Ahmedabad is concerned. Therefore, it is not for the Court to comment anything on the wisdom of the policy embodied in the impugned regulation.
We are quite conscious of the fact that no land owner, more particularly, a small plot holder would appreciate the idea of leaving aside 35% to 40% of the land for such town planning purposes as any owner would be anxious to see that every inch of his land is being utilized at its best. However, people are not mindful of the fact that the restrictions imposed today will yield better results tomorrow and it is only the people who will ultimately be benefited. The point which we are discussing is well answered by the Supreme Court in the case of Esha Ekta Apartments Co-operative Housing Society Ltd. and others v. Municipal Corporation of Mumbai and others, AIR 2013 SC 1861, in the following words :
Page 165 of 169 C/WPPIL/111/2013 CAV JUDGMENT"In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.
The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimised from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.Page 166 of 169 C/WPPIL/111/2013 CAV JUDGMENT
Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building."
Once again at the cost of repetition, we reiterate that under the Town Planning Act there are provisions as regards the preparation of a development plan and town planning scheme. The development plan is a macro plan as envisaged under Section 12 of the Act, whereas the town planning scheme is a micro plan which is provided in Sections 40 to 71 of the Act. There is a vast difference between a macro plan and a micro plan. The development plan is prepared keeping in mind a vision for 20 years. None can dispute the fact that the authorities, while sanctioning and preparing a town planning scheme, are unable to match with the pace at which the development is taking place as on today. Such is the reason why development takes place even in an area where there is no town planning scheme. Keeping this in view the special provisions are made for the non-town planning scheme areas. If people are permitted, more particularly, those engaged in the business of construction and development, without keeping in mind the future necessities, more particularly, when a town planning scheme is prepared, virtually there would not be any possibility for reconstitution of a plot or even for providing an allocation as envisaged under sub-section (3) of Page 167 of 169 C/WPPIL/111/2013 CAV JUDGMENT Section 40 of the Act. However, with a view to see that the development is not stalled and can be permitted even in a non-town planning area, a provision is made to keep 40% of the total land area intact, wherein no development is permissible. Such a provision is not a reservation on allocation in the development plan, but it is one of the restrictions as provided under Section 26 of the Act. This would facilitate the town planning authorities to undertake effective micro planning when the intention to prepare a town planning scheme is declared under Section 41 of the Act. Such restriction, in fact, is a part and parcel of the town planning and the same is not just a figment of imagination of the authorities concerned. One should not forget that when a development is made in a non-town planning area, such lands are not final plots as defined under the Act, but they are survey numbers which indicate that it is a non-town planning scheme area.
In the result, all the petitions fail and are hereby ordered to be dismissed. The interim order granted earlier in Writ Petition (PIL) No.111 of 2013, Special Civil Application No.1738 of 2014 and Special Civil Application No.1741 of 2014 stands vacated forthwith. In the facts and circumstances of the case, however, there shall be no order as to costs.
In view of the disposal of the main writ-applications, all the connected Civil Applications have become infructuous and are accordingly disposed of.
Page 168 of 169 C/WPPIL/111/2013 CAV JUDGMENT(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) FURTHER ORDER After this order is passed, Mr.Bhatt appearing on behalf of the petitioner prays for stay of operation of our order.
In view of what has been stated above, we find no reason to stay our order. Prayer is refused.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) /MOIN Page 169 of 169