Appeal No 1354 of 977
From the Judgment and Order dated 451977 of the Guja rat High Court in Letters Patent Appeal No 114 of 1977
PH Parekh and Ms Shalini Soni for the Appellants
230 TU Mehta HS Parihar Kuldeep section Parihar Mrs Manik Karanawala NP Mrs Nandini Gore and Anip Sachthey NP for the Respondents
The Judgment of the Court was delivered by K RAMASWAMY J
This appeal by special leave is against the judgment of the Division Bench in LPA No 114 of 1977 dated May 4 1977 of the Gujarat High Court
The one ques tion for decision in this appeal is whether the compliance of sub rules 3 and 4 of Rule 22 of Bombay Town Planning Rules 1955 for short the Rules  is mandatory and whether the violation thereof invalidates the final town planning scheme
In a suit laid by the appellants the trial court found as a fact that the appellant a partnership firm was continuing in possession of the old premises bearing MC 2 No 3523 S No 163 A 2 from the year 1940 as a directte nant of Ahmedabad Panjara Pole Barartha a registered trust the owner of the plot of land of survey No 163 situated in Ward No C  in front of town hall in Sher Kota outside Saraspur gate in the city of Ahmedabad
The original plot consists of an area about 5 hundred to 6 hundred square yards in extent wherein  certain structures were laid and leased out to the tenants or sub tenants for business pur poses
The Town Planning Scheme was formulated by the munic ipal corporation exercise of its power under the Bombay Town Planning Act 1955 Act 27 of 1956 for short the Act  and reconstituted the final plot Nos 82 and 83 out of the original plot No 59 of the Town Planning scheme No 16 Sher Kota Admn
Survey No 163
The Town Planning Officer did not issue special notice as required under sub rule 3 and opportunity provided for under sub rule 4 of Rule 21
The appellants along with others filed civil suits challeng ing the action
The appellants  suit was decreed declaring that final plot Nos 82 and 83 upon which the structures were standing with Municipal No 3523 and in occupation of the appellants is illegal invalid and issued a permanent injunction restraining the respondent not to enforce the reconstituted plot Nos 82 and 83 until due procedure is followed
The learned Single Judge in First Appeal No 66976 allowed the appeal alongwith other bunch of appeals holding that the decision in Dungarlal Harichand vs State of Gujarat  Ors Bench ratio applies to the facts in this case and the appellants are not entitled to special notice required under sub rule 3 and opportunity under sub rule 4 of Rule 21
The failure to comply therewith does not vitiate nor render the draft scheme or the final scheme a nullity
Accordingly the learned single Judge allowed the appeal set aside the decree of the trial court and dismissed the suit
On Letter Patent Appeal the Division Bench confirmed the same
Thus this appeal
231 Shri Mehta the learned Senior Counsel for the respond ents claimed that special notice required under sub rule 3 and the opportunity under sub rule 4 of Rule 21 were not mandatory
Hence they were not complied with
Since sub rule 3 of Rule 21 is only an additional advantage it is not dispensable
At any rate it could be waived
The framing of the town planning scheme and its final approval is for the benefit of the residents of the local authority as an amenity provided therein to the general public ie Instruc tion of General Post Office
The interest of the general public outweighs the individual interest
Therefore sub rule 3 of Rule 21 is not mandatory
A bird s eye view of the statutory scheme and its effect on the right and interest of the owner or tenant would point poignantly that the contention is devoid of substance
The Act as modified and adapted by the Gujarat Adaptation of Laws State Amendments Order 1963 as amended from time to time was to ensure that the town planning schemes are made in a proper manner and execution thereof is made effective
The local authority has to prepare a development plan Master Plan for the entire area within its jurisdiction
Section 22 defines development plan means a plan for the development and redevelopment or improvement of the entire area within the jurisdiction of a local authority prepared under section 3
The local authority has been defined under section 24 to mean municipal corporation or municipality etc
Section 25 defines owner in an inclusive lay saying that any person for the time being receiving or entitled to receive   the rent or profits of the property in connection with which it is used
Section 23 defines plot to mean a continuous portion of land held by one ownership
Section 29 defines reconstituted plot to mean a plot which is in any way altered by the making of a town planning scheme
Section 210 defines scheme to include a plan relating to a town planning scheme
Section 31 empowers every local authority to prepare and publish in the prescribed manner a development plan and to submit it to the State Govt
for sanction otherwise Government too is empowered to do so
Under sub section 1 of section 4 the local authority is authorised to make a declaration of its inten tion to prepare a development plan and to despatch a copy thereof to the State Govt
for publication in the Official Gazette
The State Govt
after inviting suggestions from the public within a period of two months is to publish in the Official Gazette the fact of making such declaration or intention as aforesaid
Section 7 prescribes the particulars of the Master Plan
Chapter III prescribes the making and the contents of the town planning scheme
Section 18 provides that a local authority may make one or 232 more town planning schemes for the area within its jurisdic tion or in part thereof regard being had to the proposal in the final development plan
Sub section 2 provides that such town planning scheme may make provisions for any of the following matters a the laying out or relaying out of land either vacant or alreadybuilt upon b   omitted being irrelevant c lay out of new streets or roads constructions diversion extension alteration improvement and stopping up of streets roads and communications d the construction alteration and removal of buildings bridges and other structures e the allotment or reservation of land for roads open spaces gardens recreation grounds school market green belts and dairies transport facilities and public purposes of all kinds f drainage inclusive of sewerage surface or sub soil drainage and sewage disposal g lighting h Water supply i Omitted
j imposes sub section 2 conditions and restric tions in regard to the open space to be maintained about buildings the percentage of building area for a plot the number size height and character of buildings allowed in specified areas the purposes to which buildings or speci fied areas may or not be appropriated the sub division of plots the discontinuance of objectionable users of land in any area in reasonable periods parking space and loading and unloading space for any building or the sizes of projec tions and advertisements signs
k  1 Omitted
In Chapter IV under sub sec
1 ors
22 the local authority may by a resolution declares its intention to make a town planning scheme in respect of the whole or any part of the land which is in the course of development 233 or likely to be used for building purposes or already built upon
Within 21 days from the date of such declaration it shall publish it in the prescribed manner the details are not relevant here and shall despatch a copy thereof to the State Govt
Under sub section 1 of section 23 within 12 months from the date of such declaration or extended period not exceeding six months the draft scheme for the area in respect of which the declaration has been made by a notifi cation in the official Gazette shall be approved
Section 25 envisages specification of the particulars in the draft scheme
Clause a specifies 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 c the extent to which it is proposed to alter the bound aries of original plots etc
Under section 26 the size and shape of every reconstituted plot shall be determined so as to render it suitable for building purposes etc
with further particulars enumerated in sub sections 2 and 3 thereof
Section 27 gives an opportunity to any person effected by such scheme to submit objections if any within six months from the date of publication of the draft scheme
The local authority shall consider such objections it is empowered to modify such scheme as it thinks fit in the light of the objection and then to submit it to the State Govt
within four months from the date of its publication in the official Gazette as required under section 281
The State Govt
within six months from the date of the submis sion of the draft scheme by the local authority original or with modification shall sanction such scheme with or without any further modification and publish the same in the offi cial Gazette with such conditions as it may think fit
Such scheme shall be open to the inspection of the public under section 283
Under section 311 within one month from the date of the publication of the draft sanctioned town planning scheme the State Govt
shall appoint a Town Planning Offi cer who is to make final scheme while performing the duties imposed on him under section 32 in accordance with the procedure prescribed in section 32 and the Rules
Under section 32 after notice given in the manner it defines and demarcates the areas allotted to or reserved for a public purposes or purpose of the local authority and the reconstituted plots indicate the person to be allotted of ownership in reconsti tuted plot in common and the shares of such persons etc
He has also to fix the difference between the total of the value of the original plot and the total of the plots in cluded in the final scheme etc
He has also to calculate or to estimate the compensation payable on each plot used the contribution to be levied on each plot used or reserved for a public purpose of use partly to the owner and partly to the public to determine the amount of exemption if any from payment of the contribution of the lands occupied by religious and charitable purposes
The contribution of the 234 costs in the final scheme is also enjoined to be calculated and to determine the liabilities etc
as indicated in Clauses vi to xi
Clause xii provides for the total or partial transfer of any right in any 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 and then has to draw plan as provided under clause xiv in the final scheme in accordance with the draft scheme
Under the proviso it is empowered to make variation from the draft scheme the details of which are not necessary but suffice to state that under the proviso no substantial variation shall be made by the Town Planning Officer without the consent of the local authority and without hearing any objections which may be raised by the owner concerned
Thereafter the decision of the Town Plan ning Officer subject to an appeal if any the State Govt
under section 34 shall make it final and binds the parties
The final scheme shall be published after following the procedure in Rule 211 to 8 as per sub rule 9
Section 54 provides that on and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme shall be ejected summarily as per the prescribed procedure and local authority shall also be entitled to remove pull down or alter any building or other work in the area included in the scheme under section 55 after giving notice in the prescribed manner and in accordance with the procedure of the scheme
Section 56 gives power to the State Govt
to vary scheme on grounds of irregularity or infirmity in making the scheme
Under section 60 every party to any proceeding before the Town Planning Officer shall be enti tled to appear either in person or by his recognized agent
Though the challenge in the appeal is confined to a limited point as will presently appear we have given the conspectus of the statutory scheme to bring out the fact that the Town Planning Officer before making the final scheme and submitting it to the local authority is required to follow the procedure prescribed by the Act and the Rules
He is entitled to alter the plots make reconstitution of plots determine the persons entitled to reallotment on reconstitution to reserve the area for public purpose determine the compensation liability of the owner to con tribute the amount to provide amenities etc
At the rele vant stages he is required to issue notice to the effected person
The question is whether the tenant or a sub tenant is a person interested and is entitled to notice
It is obvious that under section 105 of Transfer of Property Act a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in 235 possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law
Therefore a tenant or a subtenant in possession of a tene ment in the Town Planning Scheme is a person interested within the meaning of Rules 213  4 of the Rules
But he must be in possession of the property on the crucial date ie when the town plan scheme is notified in the official gazette
Every owner or tenant or a sub tenant in posses sion on that date alone shall be entitled to a notice and opportunity
Undoubtedly the Town Planning Scheme was published on July 1 1951
There was inordinate delay in implementation of the scheme for 30 long years
Though Shri Parekh learned counsel for the appellants contended that a better scheme could be formulated for construction of a post office upon the reconstituted plot No 82 by leaving out the shops in question we are not inclined to embark upon an enquiry in that regard
The Act gives power to the local authority to have the matter investigated into and to formulate its town planning scheme its approval is by the State Govt an expert officer namely Town Planning Officer thereafter is appointed to finalise the scheme with all local assist ance
He being an expert on the site is entitled to look into all relevant aspects and to finalise the scheme for reconstitution of the plot or alteration of the boundaries etc
Appellants are entitled to notice under sub rule 3 and a reasonable opportunity under sub rule 4 thereof
Rule 211 to 8 lay down the procedure to be followed by the Town Planning Officer and it reads thus 21
Procedure to be followed by Town Planning Officer The Town Planning Officer shall give notice to the date on which he will commence his duties and shall state therein the time as provided in rule 30 within which the owner of any property or rights which is injuriously af fected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in promi nent places at or near the area comprised in the scheme and at the office of the Town Planning Officer
2 The Town Planning Officer shall after the date fixed in the notice given under sub rule 1 continue to carry on his duties as far as possible on working days and during working hours
3 Special notice of at least three clear days shall be served upon the person interest ed in any plot or in any particular comprised in the scheme before the Town Planning Offi cer 236 proceeds to deal in detail with the portion of the scheme relating thereto
Such special notice shall also be posted at the office of the Town planning Officer
Such notice shall be given in the cases mentioned in clause i ii and iii of sub section 1 of section 32 and in any other cases where any persons have not been sufficiently informed that any matter affecting them is to be considered
4 The Town Planning Officer shall give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations if any
5 If during the proceedings it appears to the Town Planning Officer that there are conflicting claims or any difference of opin ion with regard to any part of the scheme the Town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars and shall give a decision with the reasons there of
All such minutes shall be appended to the scheme
6 The Town Planning Officer shall record and enter in the scheme every decision given by him under clauses i ii iii vii x and xii of sub section 1 of section 32
The calculations and estimates required by clauses iv v  vi vii ix x and xiii of sub section 1 of section 32 shall be set out and recorded
7 The final scheme drawn up by the Town Planning Officer shall include the particulars specified in rule 17
8 The component parts of the scheme shall be so ar ranged that they may be readily referred to in connection with the map and plans
9 Omitted
A reading of section 32 read with Rule 213 makes it abun dantly clear that the the Town Planning Officer is to give notice of at least 3 days in the prescribed manner to the effected persons to submit objections or views are to be given adequate opportunity under rule 214 to respond and thereafter the Officer is to demarcate the area allotted to or reserved for public purposes or for purpose of the local authority and the reconstituted plots to be allotted to persons in ownership with the shares of such persons in common plot etc
He is also entitled to alter the bound aries allocate certain lands for public purposes reduce the size of the existing plots or re distribute the plots to the owners etc
in the 237 reconstituted plot
The second stage is the calculation of the contribution and apportionment thereof among the persons liable to make contribution
Thus the owner tenant or a sub tenant as the case may be is entitled to a notice and an adequate opportunity to place on record if he so choses his objections or views and the same shall be considered and action taken thereafter
It is settled law that before depriving a person of his property or imposing any further liability the principles of natural justice require prior notice and reasonable opportunity to him to put forth his claim or objections
Rule 213 speaks of special notice of at least three days duration
It is in consonance with and in compliance of the principles of natural justice
The legislature thus made a distinction between the general notice envisaged in sub rule 1 of Rule 21 and special notice under sub rule 3 of Rule 21 which was in addition to the former
The purposes of clauses 3 and 4 of Rule 21 are obvious and the consequences that would ensue are self evident
These sub rules subserve the principles of natural justice to avoid arbitrariness offending article 14 and to be just and fair procedures satisfying the mandate of article 21
Nonobservance otherwise would render the scheme illegal
No provision of a statute or Rule would be rendered surplusage or otiose
The construction of the Rules by the Full Bench would however result in rendering subrules 3  4 surplusage and otiose
Sub rule 4 postulates that Town Planning Officer shah give to a person effected by the scheme sufficient opportunity to state his views and shall not give any
decision till he duly considers the represen tation if any
The issuance of notice under sub rule 3 and giving of sufficient opportunity under sub rule 4 are self evident to subserve the basic concept of fair and just procedure
Accordingly we hold that issuance of special notice of at least three clear days duration and giving sufficient opportunity to the person effected to put forth his views of the scheme are mandatory and non compliance thereof vitiates the validity of the final scheme
The use of shall  in the given circumstances may be construed to be directory but not mandatory as contended by Shri Mehta
The appearance of shall  is not conclusive nor per se connotes its mandatory contour
Its meaning must be ascertained in the light of the legislative intent in its employment the context in which it was couched the conse quences it produces the result it effected and above all the purpose it seek to serve would all be kept in view
From the fact situation the courts are to cull out the intention whether the construction to be put up would subserve the purpose of the legislative intent or tend to defeat it
Public interest is always a paramount consideration
Since the non compliance with issuance of notice and giving of sufficient opportunity contemplated under sub rules 3 and 4 of Rule 21 injuriously affects the right to 238 property of the owner or interest of the tenant or sub tenant as the case may be it shall be construed to be mandatory and not directory
In this view it is redundant to burden the judgment with all the decisions cited by either counsel
The principle of
Waiver connotes issuance of notice and non response thereto
Everyone has a right to waive an advantage or protection which law seeks to give himher
Undoubtedly if a notice iS issued and no representation was made by either the owner tenant or a sub tenant it would amount to waive the opportunity and such person cannot be permitted to turn round after the scheme reaches finality to say that there is non compliance of sub rules 3 and 4 of Rule 21
It would amount to putting premium on dilatory and dishonest conduct
Accordingly we are of the considered view that the judgments in Kaushikprasad Chandulal Mahadevia  Anr
vs The Ahmedabad Municipal Corporation and Ors 1970 11 GLR 993 and Mohanlal Jesinghbhai vs PJ Patel Town Development Officer Ahmedabad Municipal Corporation  Ors  laid down the law correctly
The finding of the Full Bench in the first part of its judgment to the effect that non compliance with the requirements of sub rules 3 and 4 of Rule 21 does not vitiate the scheme is not sound in law
It is seen that the appellant has been in possession as tenant for well over half a century and therefore it is injuriously affected by the scheme which has the effect of terminating his possession and this adversely affects its business in the demised premises
Since it is a running business over the years the respondent is directed to provide an alternative premises by allotting a suitable shop within the city to the appellant to put it in possession thereof and until then allow its occupation of demised shop
In case the appellant does not vacate or creates any ob struction in any form in the matter of possession it would be open to the respondent to have the appellant ejected summarily
In this view we decline to interfere with the scheme
The appeal is accordingly allowed to the above extent and in other respects the decree of the Courts below is upheld
But in the circumstances parties are directed to bear their own costs
TNA Appeal allowed


Summary:
The appellants along with another were tried of the charge of murder under Section 302 IPC read with Sec tion 34 IPC The prosecution case was that the appellants as well as the deceased s brother and his son were residing in a vil lage
The deceased came to the village on 671974
On 871974 at about 1030 am the deceased s brother along with his wife and his son had gone to the mango grove across the choe to collect mangoes to give to the deceased
While they were returning home along the pathway the deceased was seen coming in the opposite direction
The two appellants along with another accused emerged on the scene and at tacked the deceased
Appellant No1 had a datar and Appel lant No 2 had a sua and their companion had a lathi
After inflicting injuries with the weapons the appellants escaped
The deceased was removed to the house of one Darbara Singh for being rushed to the hospital but within a short time he breathed his last
The first information was lodged at the police station around 700 PM and the crime was registered and investi gated and finally chargesheeted
The post mortem examination of the dead body revealed that the deceased had sustained lacerated injuries and three stab wounds and that he died on account of the shock and hemorrhage as a result of the injuries
The motive alleged was that there had been some grouse on account of the transfer of agricultural land that be longed to the family among the 240 children of the three brothers
The Sessions Judge acquitted the accused of the charge
The High Court in appeal preferred by the State convicted the appellants and sentenced them to undergo imprisonment for life against which this appeal under Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdic tion Act 1970 was filed
The appellants contended that the view taken by the trial court was reasonable and there was no justification for upsetting the judgment even if a different view could have been taken by the appellate court on reappraisal of the evidence that the High Court did not dislodge the various reasons given by the trial court for discarding the evidence and that the conclusion drawn by the High Court on the evidence on record was wrong
Dismissing the appeal this Court HELD 1
The prosecution evidence in the case is wholly reliable and it leads to irresistible conclusion that the appellants had intentionally caused the death of the de ceased
The occurrence took place in broad day light at a place close to the residence of the witnesses
The appel lants are the near relations of the deceased and the wit nesses and it has happened in the background of the family rued
The first information has been recorded within a few hours which in the circumstances of the case cannot be considered as unreasonably delayed
The version given in the FIR is substantially the same as the one spoken to by the witnesses before the Court
243 C D 2
The eye witnesses have given consistent account of the role played by each of the appellants
There would not have been any difficulty for the witnesses to identify the appellants from a distance and across the reeds even if they could get only a glimpse of them in the course of their action and the medical evidence is not Inconsistent
243 E F 3
The fact that the acquittal of the companion of the appellants had not been interfered with by the High Court cannot advance the case of the appellants
The High Court has given him the benefit of doubt on the materials that emerged in the evidence
That is no reason to discard the evidence of the witnesses so far as the appellants are concerned when such 241 evidence does not suffer from any serious infirmity 243 H 244 A