# [1985] Supp. 3 S.C.R. 1025

- **Citation:** [1985] Supp. 3 S.C.R. 1025
- **Court:** Supreme Court of India
- **Decided:** 1985
- **Bench:** O.Chinnappa Reddy, E.S. Venkatafamiah, V. Balakrishna Eradi, R.B. Misra, V. Khalid
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1985-supp-3-s-c-r-1025-9026
- **Pages:** 36

## Headnote

Bombay Town Planning Act, 1954 Sections 32 & 53 - Whether
the Town Planning Scheme No. VIII (Umarwada) published under the
Act is violative of Articles 14, 19(1) (f) and 31 of the Constitution of India.
Precedents, scope, nature and authority of -
Duty of a
Constitution Bench to consider the effect of the precedent,
explained - The binding nature of Shantilal Mangaldas's case.
A
B
·c
Statutes - Act not providing for an appeal from some of the
D
decisions under a particular section while providing an appeal
against some other decisions under the very same section -
Whether could be said to be discriminatory and unconstitutional.
Town Planning Schemes under the Bombay Town Planning Act of
1954 not providing for any solatium while such solatium is
E
available under the Land Acquisition Act -
whether for that
reason it could be said to be discriminatory.
Land admeasuring in all 49 acres 22 gunthas bearing Survey
Nos. 75, 81, 83, 84 and 86 situated at Surat City in the State of
Gujarat originally belonged to one Ladli Begum. She granted .a
lease in respect of the said land in favour of a company called
F
Nawab of Belha Spinning, Weaving
and Manufacturing Mills Ltd.
wider a document dated November 15, 1882 for a period of 99 years
with effect from November'' 1, 1881 with a right of renewal for a
further period of 99 years. The company which bad taken the land
on lease executed a sub-lease in respect of 38 acres 2 gunthas
out of tbe entire plot of land on March 29, 1881 in favour of one
G
Dr. Nassurwanji N. Khambata for .the residuary period of 99 years
without the right of renewal. This sub-lease was to expire on
October 31, 1980. Under s document dated April 30, 1928 Surat
Parsi P8DChayat Board acquired the lease in respect of the entire
38 acres 2 gunthas, from a lady who was the daughter of one
llustamji who had acquired the rights of Dr. Nassurwanji N.
Khambata· On May 24, 1937 the appellant Prakash Amichand Shah
H
A
B
c
D
E
F
G
H
1026
SUPREHE COURT REPORTS
[1985] SUPP. 3 s.c.R.
purchased the right, title and interest of the head lessee, that
is Nawab of Belhs Spinning, Weaving and Manufacturing Mills Ltd•
in an auction sale held in the course of liquidation proceedings
of the said company. The appellant thus became the head lessee of
the entire plot of land with the rights spe<:ified in the document
dated November 15, 1882. Surat Parsi Panchayat Board which had
acquired the right of the sub-lessee in respect of 38 acres 2
gunthas created sub-lease in respect of 34 acres 4 gunthas
in Survey Nos. 75, 81 and 82 in fa~our of the Surat Municipal
Corporation under a document dated March 30, 1963 relating the
sub-lessee's right in the remaining land.
The Surat Borough Municipa1ity passed a resolution
on
August 2, 1963 to prepare s Draft Develop111ent Plan for the entire
ares within the municipal limits of Surat city in accordance with
the Developnent Regulations. issued by it with the object of
checking haphazard growth of the city. Pursuant to the said
resolution, a notification was issued on April 3, 1965 under
section 4 of the Land Acquisition Act, 1894 to acquire a portion
of the entire plot of land admeasuring 34 acres 4 gunthas in
Survey Nos. 75, 81 and 82 for the purpose of setting up an
industrial estate by the Surat Borough Municipality, Surat which
involved the shifting of Municipal Workshops and Central Stores.
On
June
22,
1965
the Surat Borough Municipality made
a
declaration declaring its intention to prepare a Town Planning
Scheme, being the Town Planning Scheme No. VIII of Umsrwada in
respect of the locality called Umarwada under section 22 of the
L.A. Act. Since the Surat Municipality could not make and publish
the draft scheme even within the time allowed under the Bombay
Town Planning Act, under sub-section 2 of section 23 of the Act
the Collector of Surat was authorised by the State Government to
make and publish the draft scheme dated July 4, 1967 the land
admeasuring 1,37, 961 sq. metres out of the aforesaid land

## Text

_Characters 0–39,808 of 86,781. This is a partial read: ask again with offset=39808 for what follows._

1025
PllA1ASH AMICEAND SllAll
V•
STAIE OF GUJARAT & ORS.
DECEMBEF 20, 1985
[O.CHINNAPPA REDDY, E.S. VENKATAFAMIAH, V.
BALAKRISHNA ERADI,
R.B. MISRA AND V. KHALID JJ.]
Bombay Town Planning Act, 1954 Sections 32 & 53 - Whether
the Town Planning Scheme No. VIII (Umarwada) published under the
Act is violative of Articles 14, 19(1) (f) and 31 of the Constitution of India.
Precedents, scope, nature and authority of -
Duty of a
Constitution Bench to consider the effect of the precedent,
explained - The binding nature of Shantilal Mangaldas's case.
A
B
·c
Statutes - Act not providing for an appeal from some of the
D
decisions under a particular section while providing an appeal
against some other decisions under the very same section -
Whether could be said to be discriminatory and unconstitutional.
Town Planning Schemes under the Bombay Town Planning Act of
1954 not providing for any solatium while such solatium is
E
available under the Land Acquisition Act -
whether for that
reason it could be said to be discriminatory.
Land admeasuring in all 49 acres 22 gunthas bearing Survey
Nos. 75, 81, 83, 84 and 86 situated at Surat City in the State of
Gujarat originally belonged to one Ladli Begum. She granted .a
lease in respect of the said land in favour of a company called
F
Nawab of Belha Spinning, Weaving
and Manufacturing Mills Ltd.
wider a document dated November 15, 1882 for a period of 99 years
with effect from November'' 1, 1881 with a right of renewal for a
further period of 99 years. The company which bad taken the land
on lease executed a sub-lease in respect of 38 acres 2 gunthas
out of tbe entire plot of land on March 29, 1881 in favour of one
G
Dr. Nassurwanji N. Khambata for .the residuary period of 99 years
without the right of renewal. This sub-lease was to expire on
October 31, 1980. Under s document dated April 30, 1928 Surat
Parsi P8DChayat Board acquired the lease in respect of the entire
38 acres 2 gunthas, from a lady who was the daughter of one
llustamji who had acquired the rights of Dr. Nassurwanji N.
Khambata· On May 24, 1937 the appellant Prakash Amichand Shah
H
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1026
SUPREHE COURT REPORTS
[1985] SUPP. 3 s.c.R.
purchased the right, title and interest of the head lessee, that
is Nawab of Belhs Spinning, Weaving and Manufacturing Mills Ltd•
in an auction sale held in the course of liquidation proceedings
of the said company. The appellant thus became the head lessee of
the entire plot of land with the rights spe<:ified in the document
dated November 15, 1882. Surat Parsi Panchayat Board which had
acquired the right of the sub-lessee in respect of 38 acres 2
gunthas created sub-lease in respect of 34 acres 4 gunthas
in Survey Nos. 75, 81 and 82 in fa~our of the Surat Municipal
Corporation under a document dated March 30, 1963 relating the
sub-lessee's right in the remaining land.
The Surat Borough Municipa1ity passed a resolution
on
August 2, 1963 to prepare s Draft Develop111ent Plan for the entire
ares within the municipal limits of Surat city in accordance with
the Developnent Regulations. issued by it with the object of
checking haphazard growth of the city. Pursuant to the said
resolution, a notification was issued on April 3, 1965 under
section 4 of the Land Acquisition Act, 1894 to acquire a portion
of the entire plot of land admeasuring 34 acres 4 gunthas in
Survey Nos. 75, 81 and 82 for the purpose of setting up an
industrial estate by the Surat Borough Municipality, Surat which
involved the shifting of Municipal Workshops and Central Stores.
On
June
22,
1965
the Surat Borough Municipality made
a
declaration declaring its intention to prepare a Town Planning
Scheme, being the Town Planning Scheme No. VIII of Umsrwada in
respect of the locality called Umarwada under section 22 of the
L.A. Act. Since the Surat Municipality could not make and publish
the draft scheme even within the time allowed under the Bombay
Town Planning Act, under sub-section 2 of section 23 of the Act
the Collector of Surat was authorised by the State Government to
make and publish the draft scheme dated July 4, 1967 the land
admeasuring 1,37, 961 sq. metres out of the aforesaid land of
which the appellant wu the head lessee was shown as reserved for
the Surat Municipality. The appellant filed his objection to the
proposed reservation pointing out therein that he himself needed
the land for expansion of his business and for construction of
homes for his employees. He also stated that the Surat Municipality had acted mala fide in securing the reservation of such a
large piece of land in its favour. The Government of Gujarat
after overruling the objection ultimately granted sanction to the
draft scheme prepared by the Collector of Surat by its notification dated May 10, 1968. When one Mr. M.G. Makwana appointed as
the Town Planning Officer by the Government on February 28, 1969
entered upon his functions under section 32 of the Act, the
appellant again filed his objection to the reservation of his
,-
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P.A.SHAR v. STATE
1027
land for the alleged purpose of the Municipal Corporation. In
A
addition the appellant also claimed compensation in respect of
the said 38 acres 2 guntbas at the rate of Rs• 50 per sq• yard
alleging that the land in the vicinity bad been sold at that rate
8lld
claimed
towards
his
share
two-thirds
of
the
total
compensation. Then on June 30, 1970 the Tow Planning Officer
issued a notice expressing his intention to acquire the land in
B
question admeasuring 1,37 ,961 per sq. metre. Aggrieved by the
said decision, the appellant filed an appeal before the Board of
Appeal. The Board of Appeal held that disputes regarding compensation of lands taken away for the purpose of the scheme being
not within the scope of section 33 (1) (xiii) of the Act the
deciaion of the Tow Planning Officer on those questions was not
c
appealable under section 34 of the Act. Aggrieved by the decision
of the Board the appellant filed a writ petition before the High
Court
of Gujarat
which
was
dismissed.
The
Constitutional
questions raised in the writ petition could not be decided by the
High Court as emergency was then in force in the country and the
rights guaranteed under Articles 14, 19 and 31 of the Cons ti tuD
tion of India on which the appellant's contentions were based
.remained suspended at that time. The High Court, however,
referred to the decision of this Court in State of Gujarat v.
Shrl Sbantilal Mangaldss, [1969] 3 s.c.R. 341 in which the
validity of the Bombay Tow Planning Act bad been upheld.
Aggrieved by the judgment of the High Court the appellant filed
E
this appeal by special leave. The appeal was heard by a Bench of
this Court consisting of A.c. Gupta and A.P. Sen JJ, which, by
its judgment dated July 24, 1981 reported as Prakash Aoi1cJumd
Shah v. State of Gujarat, [1982) 1 s.c.R. 81, came to the conclusion that the High Court was right in its finding that the
decision of the Tow Planning Officer determining the amount of
compensation in the appellant's case was not appealable. However,
F
the Court felt that the case should be placed before the Constitution Bench for hearing the questions relating to the constitutional validity of the Act. Hence the appellant's case before the
Constitution Bench.
Dismissing the appeal, the Court
G
BILD: 1.1 There is no constitutional infirmity in the
provision of the Bombay Tow Planning Act, 1954 and there is no
ground to declare the Act which bas been upheld in Sbantilal
Mangalda•'s cue about 17 years ago as unconstitutional now and
to unaettle all settled transactions drawing inspiration from
certain vague observations made in some subsequent decisions.
H
[1056 D-E; 1060 B-C)
1028
SUPREME COURT REPORTS
[1985] SUPP. 3 ·s.c.R.
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1.2 The Bombay Town Planning Act is not bad for not
extending the procedure of the Land Acquisition Act, 1894 to the
proceedings under the Town Planning Scheme. lt cannot be struck
down on the ground, that if the Land Acquisition Act, 1894 had
been applied, the appellant would have had the benefit of the
machinery provided under section 18 and 54 of the Acquisition Act
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and since it is not available under the procedure prescribed by
the Act in the case of lands taken under section 53 thereof the
Act ia discriminatory. (1057 !Hl]
2.1 The object of the Bombay Town Planning Act is not just
acquiring a bit of land here or a bit of land there for some
public purpose. lt consists of several activities which have as
c
their ultimate object the orderly development of an urban area.
lt envisages the preparation of a development plan, allocation of
land for various private and public uses, preparation of a Town
Planning Scheme and making proviaions for future development of
the area in question. On the final Town Planning Scheme coming
into force under section 53 of the Act there is an autoJJ111tic
vesting of all lands required by the local authority. lt is not a
u
case where the provisions of the Land Acquisition Act, 1894 have
to be set in motion either by the Collector or by the Government.
The divesting of title takes place statutorily. Section 71 of the
Act provides for payment of compensation to the owner of an
original plot who is not provided with a plot in the final
scheme, or if the contribution to be levied from him under
E
section 66 of the Act is less than the total amolmt to
be
declucted therefrom under any of the provisions of the Act.
Section 73 o1 the Act provides for payment due to be made to any
person by the local authority by adjustment of account as
provided in the Act. Section 32 of the Act lays down the various
duties and powers of the Town Planning Officer which he has to
F
discharge and exercise for the benefit of the whole commnity.
All his functions are parts of the social and economic planning
undertaken and executed for the benefit of the commnity at large
and they cannot be done in isolation. When such functions happen
to be integral parts of a single plan which in this case happens
to be an urban development plan, they have to be viewed in their
G
totality and not as individual acts directed against a single
person or a few persons. lt is quite possible that when statutory
provisions are made for that purpose, there would be some
difference between their impact on rights of individuals at one
stage and their impact at another stage. (1046 C-il; 1047 A]
H
2.2 ln this very Act, there are three types of taking over
of lands - first under section 11, secondly under section 53 and
,
•
P.A.SHAll v. STATE
1029
thirdly under section 84 of the Act, each being a part of a
siDgle scheme but each one having a specific object and public
purpose to be achieved. While as regards the determination of
compensatio'1 it may be possible to apply the provisions of the
Land acquisition Act, 1894 with some modification as provided in
the schedule to the Act in the case of lands acquired either
under section ll or under section 84 of the Act, in the case of
1llDds which are needed for the local authority under the Town
Planning Scheme which authorises allotment of reconstituted plots
to persons from whom origins! plots are taken, it is difficult to
apply the provisions of the Land Acquisition Act, 1894. The
provisions of section 32 and the other financW provisions of
tbe Act provide for the determination of the cost of the scheme,
the development charges to be levied and contribution to be made
by the local authority etc. It is only after all that exercise is
doue the money will be paid to or demanded from the owners of the
originsl plots depending on the circumstances govenl1Il8 each
case. If in the above context, the Act has made special provision
under section 67 to 7l of the Act for determining compensation
payable to the owners of origins! plots who do not get the
reconstituted plots it cannot be said that there has been any
violation of Article 14 of the Constitution. Even there the
market value of the land taken is not lost sight of and hence no
violation of Article 31(2) of the Constitution either. [1047 A-E)
A
B
c
D
State of Gujarat v. Shr1 Sbantflal MangaJdas & Ors.,(1969]
E
3 S.C.R. 341; 1'be Zaudu PMrwce1t1ca1 \H>rb Ltd. v. G.J. Desai &
0rs.,c.A.No. 1034 of 1967 decided on 28th August 1969; Maneklal
a.botalal & 0rs. v. K.G. MQwana & are., (1967]
3
s.c.R.
65
explained and applied.
3.l A decision ordinarily is a decision on the case before
the Court, while the principle underlying the decision would be
F
billding as a precedent in a case which comes up for decision
subsequently. Bence, while applying the decision to a later case,
the Court which is dealing with it should carefully try to
ascertain the true principle laid down by the previous decision.
A decision often takes its colour from the questions involved in
the case in which it is rendered. The scope and authority of a
G
precedent should never be expanded unnecessarily beyond the needs
of a given situation. [1052 C-E]
3.2 Expressions like "virtually overruled" or "in substance
overruled" are expression of inexactitude. In such circumstances,
it is the duty of a Constitution Bench of the Supreme Court which
bas to consider the effect of the precedent in question to read
H
1030
SUPREME COURT REPORTS
(1985] SUPP. 3 s.c.R.
A
it over again and to form its own opinion instead of wholly
relying upon the gloss placed on it in some other decision. An
inappropriate purpose for which a precedent is used at a later
date does not take away its binding character as a precedent. In
such cases there is good reason to disregard the later decision.
Such occasions in judicial history are not rare. The history of
B
the law relating to the right of labourers to strike in a factory
of one such instance. (1055 E-F; H; 1056A]
3. 3 Therefore, as long as the Bombay Town Planning Act,
1954 which was upheld by the Supreme Court in Sbantilal llangalchlS'a has not been struck down by this Court in any subsequent
decision it would be wholly unjust to declare it inferentially as
c
having been declared as void in a subsequent decision which
depends mostly on the reasons in Shantilal Hangaldaa•a case for
its survival. The decision in Sbantilal HangalchlS's case has not
been overruled by the Bank Nationalisation case which has only
explained Sbantilal HangaJdaa'a case and does not overrule it
particularly after the Nation has first expressed itself in
favour of the 25th Constitution Amendment and then decided to
D
delete Article 31 altogether from the Constitution. (1056 B-1!]
E
LC. Cooper v. Union of India (1970]
3
s.c.R. 530;
JCesvananda llbarati v. State of Kera.la (1973]
Suppl. .s.c.R. l;
State of Iaranataka & Anr. V• l!enganatha Keddy & Anr. (1978]
l
S.C.R. 641 explained.
Teoiperton v. llusaell (1893) l Q.B. 715 (CA); Allen v. Flood
(1898) A.C.l; ~
v. ~thell (1901) A.C. 495 referred to.
4. There is no rule that every decision of every officer
under a statute should be made appealable and if it is not so
F
made appealable the statute should be struck down. It may be
salutory if an appeal is provided against decisions on questions
which are of great importance either to private parties or to the
members of the general public, but ordinarily on such matters the
Legislature is the best judge. Unless the Court finds that the
absence of an appeal is likely to make the whole procedure
G
oppressive and arbitrary, the Court does not condemn it as
unconstitutional. Considering the status of the officer who is
appointed as a Town Planning Officer, Section 32 of the Bombay
Town Planning Act cannot be said to confer uncanalised and
arbitrary power on the Town Planning Officer, merely because of
the denial of the right of appeal in some cases. [ 1056 F-ti;
H
1057 A-BJ
H/s Babubhai & Co. & Ora. v. State of Gujarat [1985]
2
s.c.c. 732 followed.
,
P.A.SHAH v. STATE [VENKATARAMIAH, J.]
1031
5.1 It is wrong to contend that the denial of the solatium
of 15 per cent (or 30 per cent, as the law now is) of the market
value of the land in addition to the compensation payable for
lands taken by the local authority for purposes of the scheme
makes the Bombay Town Planning Act discriminatory. [1057 E-F;
1059 G)
5.2 It cannot also be saiJ as a rule that the State which
has got to supply and maintain large public services at great
cost should always pay in addition to a reasonable compensation
some amount by way of solatium. The interest of the public is
equally important. In any event it is not shown that the
compensation payable in the present case is illusory and unreal.
[1059 H; 1060 A-BJ
Nagpur Improvement Trust and Anr. v. Vithal Rao & Ors.,
[1973) 3 s.c.R. 39; State of Kerala & Ors. v. I.Ji, Peter & Anr~,
[1980) 3 s.c.R. 290; p.c. Goswmoi v. Collector of Darnmg,A.I.R.
1982 s.c. 1214 distinguished.
CIVIL, APPELLATE JURISDICTION
Civil Appeal No. 1224 of
1977.
From the Jud&lllent and Order dated 3.9.1976 of the Gujarat
High Court in Special Civil Application No. 1501 of 1974.
R.F.
Nariman,
P.K.
Manohar
and P.R.
Parekh for
the
Appellants.
T.s. Krishnamoo,rthy Iyer, T.U. hehta ,
and s.c. Patel for the Respondents.
The Judgment of the Court was delivered by
Prashant Desai
111!NKATARAMIAH, J, 1his appeal by special leave is preferred
against the judgment dated September 3, 1976 in Special Civil
Application No. 1501 of 1976 on the file of the High Court of
Gujarat filed under Article 226 of the Constitution of India in
which the appellant had challenged the constitutional validity of
the Town Planning Scheme No. VIII (Umarwada) in respect of
certain lands situated at Surat City in the State of Gujarat,
published under the provisions of the Bombay Town Planning Act,
1954 (hereinafter referred to as 'the Act') in so far as the said
.,
scheme pertained to the land of which the appellant was the
lessee, alleging inter alia that it was violative of Article 14,
19(l)(f) and 31 of the Constitution of India.
The land in question originally belonged to ~ne Ladli Begum.
She granted a iease in respect of the said land in favour of a
A
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1032
SUPREME COURT REPORTS
[1985] SUPP. 3 S.C.R.
A
company called ~awab of Eelha Spinning, Weaving and ~Janufacturing
Mills Ltd. under a document dated November 15, 1882 for a period
of 99 years with effect from November 1, 1881 with a right of
renewal for a further period of 99 years. The land was described
as the land bearing Survey Nos. 75, 81, 83, 84 and 86 measuring
in all 49 acres 22 gunthas. The company which had taken the.land
B
on lease executed a sub-lease in respect of 38 acres 2 gunthas
out of the entire plot of land on ~larch 29, 1884 in favour of one
~
Dr. Nassurwanju N. Khambata for the residuary period of 99 years
1
without the right of renewal. This sub-lease was to expire on
October 31, 1980. Under a documeqt dated April 30, 1928 Surat
Parsi Panchayat Board required the lease in respect of the entire
38 acres 2 i:;unthas, referred to above, from a lady who was the
C
daughter of one Rustamji who had acquired the rights of Dr.
Nassurwanji ~. Khambata. On May 24, 1937 the appellant purchased
the right, title and interest of the head lessee, i.e., Nawab of
Belha Spinning, Weaving and Manufacturing Mills Ltd. in an
auction sale held in the course of liquidation proceedings of the
said company. The appellant thus became the head lessee of the
J
entire plot of land with the rights specified in the documents
~j
D
dated November
15,
1882,
referred to above.
Surat Parsi
Panchayat Board which had acquired the right of the sub-lessee in
respect of 38 acres 2 gunthas created a further sub-lease in
respect of 34 acres 4 gunthas out of the 38 acres 2 gunthas in
favour of the Surat Municipal Corporation under a document dated
March 30, 1963 retaining the sub-lessee's right in the remaining
E
land.
The Surat Borough hunicipality passed a resolution on
August 2, 1963 to prepare a Draft Developn.ent Plan for the entire
area within the municipal limits of Surat City in accordance with
the Develoyment Regulations issued by it with the object of
F
checking haphazard growth of the city. Pursuant to the said
resolution, a notificaton was issued on April 3, 1955 under
section 4 of the Land Acquisition Act, 1894 to acquire a portion
of the entire plot of land adfueasuring 34 acres 4 gunthas in
Survey Nos. 75, 81 and 82 for the purpose of setting up an industrial estate by the Surat Borough Municipality, Surat which
G
involved the shifting of ~lunicipal Workshops and Central Stores.
On June 26, 1965 the Surat Borough hunicipality msde a declaration declaring its intention to prepare a Town Planning Scheme,
being the Town Planning Scheme No. VIII of Umarwada in respect of
the locality called Umsrwada under section 22 of the Act .The
Municipality however could not make and publish the draft scheme
'
H
within 12 months from the declaration of its intention as
P .A.SRAH v. STATE [\lfiljllTARAMIAI!, J. J
1033
required by section 23(1) of the Act. The State Government, however, by its Notification dated August 31, 1966 in exercise of
its power under the proviso to section 23(1) extended the period
for makillf, and publishing the draft scheme by six months. The
Municipality could not make and publish the draft· scheme even
within that extended period of six months. Then under sub-section
(2) of section 23 of the Act the Collector of Surat was authorised by the State Government to make and publish the draft
scheme within nine months from December 26, 1966. Accordingly,
the Collector of Surat by Notification dated July 4, 1967
published a draft scheme. In the draft scheme as made and
published by the Collector, the land admeasuring 1,37,961 sq.
metres out of the aforesaid land of which the appellant was the
head lessee was shown as reserved for the Surat Municipality. The
appellant filed his objection to the proposed reservation pointing out therein that he himself needed the land for expansion of
his business and for construction of homes for his employees. He
also stated that the Surat Municipality had acted mala fide in
securing the reservatton of such a large piece of landlilits
favour. The Government of Gujarat after overrulillf, the objection
ultimately granted sanction to the draft scheme prepared by the
Collector of Surat by its Notification dated ~.ay 10, 1968. On
June 7, 1968 one Shri N .R. Bhambhani was appointed as the Town
Planning Officer to finalise the scheme. He was succeeded by Shri
M.G.Makwana who was appointed as the Town Planning Officer by the
Government on February 28, 1969. When the Town Planning Officer
entered upon his functions under section 32 of the Act, the
appellant again filed his objection to the reservation of. his
land for the alleged purpose of the Municipal Corporation. In
addition the appellant also claimed compensation in respect of
the said 38 acres 2 gunthas at the rate of Rs.50 per sq. yard
alleging that the land in the vicinity had been sold at that rate
and claimed towards his share two-thirds of the total compensation. Then on June 30, 1970 the .Town Planning Officer issued a
notice ~xpressing his intention to acquire the land in question
admeasuring 1,37 ,961 sq. me.tres. On November 4, 1971 he determined the compensation payable in respect of the said land at the
rate of Rs.2.40 paise per sq. metre. Aggrieved by the said
decision, the appellant filed an appeal before the Board of
Appeal. The Board of Appeal held that disputes regarding compensation of lands taken away for the purpose of the scheme being
not within the scope of section 33(l)(xiii) of the Act the
decision of the Town Planning Officer on those questions was not
appealable under section 34 of the Act. The Board of Appeal inter
alia observed that it was not for the Board to say anything
regarding the propriety of the action taken by the Town Planning
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1034
SUPREME COURT REPORTS
(1985) SUPP. 3 s.c.R.
Officer in reserving the entire plot of land admeasuring 1,37,961
sq. metres, in which the appellant was interested, for the
purpose of the Surat Municipality. It also held that on the
question of apportionment of the compensation no appeal lay to
it. Aggrieved by the decision of the Board, the appellant filed a
writ petition before the liigh Court of Gujarat out of which this
appeal arises.
The High Court aismissed the writ petition concurring with
the Board of Appeal that the appeal was incompetent. The
constitutional questions raised in the writ petition could not be
decided by the High Court as emergency was then in force in the
country and the rights guaranteed by Articles 14,19 and 31 of the
Constitution of India on which the appellant's contentions were
based remained suspended at that time. The High Court however
referred to the decision of this Court in State of Gujarat v.
Sbri Sbantilal Mangaldas, (1969] 3 S.C.R. 341, in which the
validity of the Act had been upheld. Aggrieved by the judgment of
the High Court the appellant has filed this appeal by special
leave.
This appeal was heard first by a bench of this Court
consisting of A.C. Gupta and A.P. Sen, JJ, On that occasion the
learned counsel for the appellant submitted that in case the
Court upheld that the appeal preferred by the appellant before
the Board of Appeal was maintainable he would not press the
grounds questioning the constitutional validity at that stage and
the matter should then go back tc the Board of Appeal for its
decision on the adequacy of the compensation.
He
further
submitted that if the Court found that the Board of Appeal was
right in holding that the appeal was not maintainable, he should
be given leave to urge the grounds challenging the validity of
the Act. The learned Judges who heard the appeal came to the
conclusion that the High Court was right in finding that the
decisioil·of the Town Planning Officer determining the amount of
compensation in the appellant's case was not appeslable by its
judgment dated July 24, 1981 which is reported as Prakash Amichand Shah v. State of Gujarat, (1982) 1 s.c.R. 81. In view of
the above conclusion the court felt that the case should be
placed before Constitution Bench for hearing the questions relating to the constitutional validity of the Act. That is how the
case is now before this Constitution Bench to consider the said
questions.
Before taking up for consideration the contentions urged on
behalf of the appellant, it is necessary to understand the
P.A.SllAH v. STATE (VENKATARAMIAH, J,]
1035
objects and the scheme of the Act. The principal objects of any
Town Planning legislation generally are to provide for planning,
the development and control of the use of 1and and to confer on
public authorities
such
as
City Municipalities,
Municipal
Boroughs, Town Municipalities, Town Panchayats etc. powers in
respect of the acquisition and development of land for planning
and other purposes. Such laws generally provide for the preparation of schemes° that might be made in respect of the land with
the general object of controlling its development, securing
proper sanitary conditions, amenities and conveniences
such as
public parks, play grounds, hospital areas etc., preserving
existing buildings or other objects of architectural, historic
and artistic interest and places of natural interest or beauty
and generally of protecting existing amenities. The Act is one
such piece of legislation. It was enacted in the place of an
earlier statute which was in force in the province of Bombay,
namely, the Bombay Town Planning Act, 1915, The Act came into
fo~ce on April 1, 1957 before the reorganisation of the State of
Bombay and it continued to be in force in· the State of Gujarat
even after the llombay Reorganisation Act 1960 came into force.
Under the Act every local authority as defined under section 2(4)
thereof was required by section 3 of the Act to carry out a
survey of the area within its jurisdiction and not later than
four years from the date on which the Act came into force to
prepare and publish in the prescribed manner a development plan
and to submit it to the State Government for sanction. Before
carrying out a survey of the area referred to in sub-sections (1)
and (2) of section 3 of the Act for the purpose of preparing the
development plan for such area, a local authority is required to
make a declaration of its intention to prepare the development
plan and to despatch a copy thereof to the State Government for
publication in the Official Gazette and to publish it in the
prescribed manner for inviting suggestions from the public within
a period of two months. Section 4 to 7 of the Act provide for the
declaration of intention of making development plan, the manner
of preparing a development plan, power of entry for carrying out
survey for preparing development plan and the contents of a
development plan. Section 7 of the Act
which deals with the
contents of development plan states that generally the development plan should indicate th~ 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. The local
authority is required to indicate in the development plan its
proposals with regard to the following :
(a) proposals for designating the use of the land for
the purposes such as (1) residential (2) industrial,
(3) commercial, and (4) agricultural;
A
B
c
D
E
F
G
H
1036
A
B
SUPIIDIE COURT REPORTS
[1985] SUPP. 3 s.c.R.
(b) proposals
for designation of land
for public
purposes such as parks, play grounds,
recreation
grounds, open spaces, schools, markets or medical,
public health or physical culture institutions;
(c) proposals for roads and highways;
(d) proposals for reservation of land for the purposes of the Union, any State, any local authority or
any other authority established by law in lndia; and
(e) such other proposals for public or other purposes
as may from time to time be approved by the local
C
authority or directed by the State Government in this
behalf.
By requiring a local authority to prepare a development
plan, the Act intends that the Town Planning Schemes should form
part of a single and cohesive plan for development of the entire
area over which the local authority has jurisdiction. The local
D
authority is required to submit the development plan for the
sanction of the State Government. After the receipt of the
sanction of the State Government of the development
plan, the
local authority is authorised by section 11(1) of the Act to
acquire any land designated in the development plan for purposes
specified in clauses (b),(c),(d) & (e) of section 7 of the Act
E
either by agreement or under
the Land Acquisition Act, 1894.
F
G
H
Sub-Section (2) of section 11 of the Act provides that the Land
Acquisition Act, 1894 as amended by the Schedule to the Act would
·apply to the determination of the compensation for the acquisition of such land.
Chapter III of the Act deals with the provisions relating to
the making of Town Planning Schemes. Section 18 of the Act
provides that subject to the provisions of the Act or any other
law for the time being in force a local authority may make one or
more town planning schemes for the area within its jurisdiction
or any part thereof having regard to the proposals in the final
development plan. Every such Town Planning Scheme may make
provisions for any of the matters such as the laying out or
re-laying out of land, either vacant or already built upon; the
filling up or reclamation of low-laying swamp or unhealthy areas
or levelling up of land; laying out of new streets or roads;
construction, diversion, extention, alteration, improvement and
stopping
up
of
streets,
roads
and
c9mnunications;
the
P.A.SllAH v. STATE [VENKATARAMIAll, J • J
1037
construction, alteration and removal of buildings, bridges and
other structures, the allotment or reservation of land for roads,
open spaces, gardens, recretion grounds, schools, markets, green
belts and dairies, transport facilitl.es and public purposes of
all kinds; the preservation of objects of historical or national
interest or natural beauty and of buildings actually used for
religious purposes; the imposition of conditions and restrictions
in regard to the open space to be maintained about buildings etc.
Before preparing a Town Planning Scheme the local authority
having jurisdiction over any such
land as is referred to in
Section 21 of the Act is required by section 22 of the Act to
declare its intention to IDBke a Town Planning Scheme in respect
of the whole or any part of such land. Within 21 days from the
date of such declaration the local authority is required to
publish its declaration of intention to make a scheme in the
prescribed manner. A copy of such declaration is required to be
sent to the State Government.
The local authority is also
required to send a plan to the State Government showing the area
which it proposes to include in the Town Planning Scheme. Under
section 23(1) within 12 months from the date of declaration of
intention to make a scheme the local authority shall prepare a
draft scheme. Under the proviso to section 23 of the Act however
the State Government may extend the time to do so by such period
specified not exceeding six months in all. Under sub-section (2)
of section 23 of the Act the State Government or an officer
authorised by the State Government in that behalf may IDBke and
publish the draft scheme if the draft scheme is not made and
published by the local authority within the period specified in
sub-section (1) of section 23 of the Act or within the period so
extended under the proviso to sub-section (1) of section 23 of
the Act within a further period of 9 months from the date of the
expiry of the extended period. If such declaration is not made by
the State Government within the further period specified in subsection (2) of section 23 of the Act, the declaration of
intention to make such scheme shall elapse and until aperiod of
three years has elapsed from the date of such declaration it
shall not be competent to the local authority to declare its
intention to make any Town Planning Scheme for the same area or
any part of it. Section 25 of the Act provides that the draft
scheme shall contain the following particulars :
(a) the area, ownership and tenure of each original
plot;
(b) the land allotted or reserved under sub-clause (a)
of clause (2) of section 18 with a general indication
'
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
1038
SUPREME COURT REPORTS
[1985] SUPP. 3 s.c.R.
of the uses to which such land is to be put and the
terms and conditions' subject to which such land is to
be put to such uses;
(c) the extent to which it is proposed to alter the
boundaries of original plots;
(d) an estimate of the net cost of the scheme to be
borne by the local authority;
(e) a full description of all details of the scheme
under such sub-clauses of clause (2) of section 18 as
may be applicable;
(f) the laying out or re-laying out of land either
vacant or already built upon;
(g) the filling up or reclamation of low-lying swamp
or unhealthy areas or levelling up of land; and
(h) any other prescribed particulars.
Section 26 deals with reconstituted plots. In the draft
scheme the size and shape of every reconstituted plot shall be
determined, so far as may be, 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 spaces. For the purpose of sub-section
{l) of section 26 of the Act the draft scheme may contain the
following proposals :-
(a) to form a reconstituted plot by the alteration of
the boundaries of an original plot;
(b) to form a reconstituted plot by the transfer
wholly or partly of the adjoining lands;
(c) to provide with the consent of the owners that two
or more original plots each of which is held in
ownership in severality or in joint ownership shall
hereaiter, with or without alteration of boundaries,
be held in ownership in connnon as reconstituted plot;
(d) to allot a plot to any owner dispossessed of land
in furtherance of the scheme and;
('
I
P.A. SllAH v. STATE [VENKATARAhlAH, J • ]
1039
(e) to transfer the ownership of a plot from one
person to another.
A
Section 27 of the Act provides for representation to be made by
persons affected by such scheme. Section 28 of the Act confers
the powers on the State Government to grant sanction to the
scheme and to publish it. Within one month from the date on which
the sanction of the State Government to the draft scheme is
B
published in the Official Gazette the State Government is
required to appoint a Town Planning Officer for the purpose of
implementing the scheme. The duties of the Town Planning Officer
are set out in Section 32 of the Act. It reads thus :
"32( l) In accordance with the prescribed procedure the Town
C
Planning Officer shall -
(i) after notice given by him in the prescribed
manner, define and demarcate the areas allotted to, or
reserved, for a public purpose or purpose of the local
authority and the reconstituted plots ;
D
(ii) after notice given by him in the prescribed
marmer, determine, in the case in which a reconstituted plot is to be allotted to persons in ownership
in common, the shares of such persons;
(iii) fix the difference between the total of values
of the original plots and the total of the values of
the plots included in the final scheme, in accordance
with the provisions contained in clause (f) of
sub-section (l) of section 64;
E
(iv) determine whether the areas used, allotted or
F
reserved for a public purpose or purpose of the local
authority are beneficial wholly or partly to the
owners or residents within the area of the scheme.
{v) estimate the portion of the sums payable as
compensation on each plot used, allotted or reserved
G
for a public purpose or purpose of the local authority
which is beneficisl partly to the owners or residents
within the area of the scheme and partly to the
general public, which shall be included in the costs
cf the scheme;
(vi) calculate the contribution to be levied on each
H
plot used, allotted or reserved for a public purpose
1040
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[1985] SUPP. 3 s.c.R.
or purpose of the local authority which is beneficial
partly to the owners or residents within the area of
the scheme and partly to the general public ;
(vii) determine the amount of exemption, if any, from
the payment of the contribution that may be granted in
respect
of
plots
exclusively
occupied
for
the
religious or charitable purposes ;
(viii) estimate the increment to accrue in respect of
each plot included' in the final scheme in accordance
with the provisions contained in section 65 ;
(ix) calculate the proportion in which the increment
of the plots included in the final scheme shall be
liable to contribution to the costs of the scheme in
accordance with the provisions contained in section 66
(x) calculate the contribution to be levied on each
plot included in the final scheme
(xi) determine the amount to be deducted from, or
added to, as the case may be, the contribution leviable from a person in accordance with the provisions
contained in section 67;
(xii) provide for the total or partial transfer of any
right in an original plot to a reconstituted plot or
provide for the extinction of any right in an original
plot in accordance with the provisions contained in
section 68;
(xiii) estimate in reference to claims made before
him, after the notice given by him in the prescribed
manner the compensation to be paid to the owner of any
property or right injuriously affected by the making
of a town-planning scheme in accordance with the
provisions contained in section 69;
(xiv) draw in the prescribed form the final scheme in
accordance with the draft scheme:
Provided that--
(a) he may make variation from the draft scheme;
..
I
•
P.A.SHAll v.