SCA/24715/2006 1/32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24715 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH Sd/- HONOURABLE MR.JUSTICE K.A.PUJ Sd/- ========================================= 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 ? 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 ? ========================================= RAMANLAL ASHARAM SHARMA C/O. RAMANLAL ASHARAM SHARMA & 20 - Petitioners Versus THE STATE OF GUJARAT THROUGH SECRETARY & 2 - Respondents ========================================= Appearance : MR YATIN N OZA, SENIOR ADVOCATE WITH MR APURVA R KAPADIA WITH MS SRUSHTI A THULA for Petitioners. MR SUNIT SHAH, GP for Respondent No. 1. MR PRASHANT G DESAI for Respondent Nos. : 2 - 3. ========================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and SCA/24715/2006 2/32 JUDGMENT HONOURABLE MR.JUSTICE K.A.PUJ Date : 22/08/2007 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. The petitioners, in all 21 in numbers, have filed this petition under Article 226 of the Constitution of India praying for the direction to the respondents, more particularly, the respondent Nos. 2 & 3 – Ahmedabad Municipal Corporation to permanently restrain them from demolishing the shops- cum-residence of the petitioners. The petitioners have also prayed for quashing and setting aside the Town Planning Scheme No. 49, Ahmedabad with respect to Survey Nos. 191/1 and 191/2 with all consequential and incidental effects and to vary the scheme accordingly. 2. This Court issued notice on 29.11.2006 and order of status- quo was passed. This order of status-quo is continued till this date. Originally, the petition was ordered to be heard along with Special Civil Application No. 14564 of 2007 and Special Civil Application No.8810 of 2007. However, by an order dated 09.07.2007, this Court has made it clear that the hearing of this petition need not wait till hearing of the other petitions being Special Civil Application No. 14564 of 2007 and Special Civil Application No.8810 of 2007. The Court peremptorily fixed the hearing of the petition on 16.07.2007. SCA/24715/2006 3/32 JUDGMENT After considering the objection raised by the Corporation against any further adjournment in the matter, as the land in question is required for widening of the road as per the Town Planning Scheme and the original occupants of the land in question which is required for widening the road, have already been given alternative accommodation and, therefore, the petitioners who claimed to be the purchasers from those original occupants have no case in law or in equity. 3. It is in the above background of the matter, the petition is taken up for final hearing. 4. It is the case of the petitioners that the petitioners are very poor persons having their small shops-cum-residence on Rajendra Park road area, Ahmedabad and they are doing their small business in the said shops-cum-residence owned by them for the last more than 35 years. The petitioners have invested their hard earned money in their shops-cum- residence and are maintaining their families with great difficulties with the help of businesses, which are carried out by them in the said shops-cum-residence. It is also the case of the petitioners that the respondents want to make 100 Feet town planning road and for that purpose, the shops-cum- residence of the petitioners are to be demolished. Earlier, a 30 meter town planning road was to be carved out as per the SCA/24715/2006 4/32 JUDGMENT Town Planning Scheme which was a straight road. But now with a view to see that the land which was going on the other side of the road is saved and some other marginal land is given to the owners of the society on the other side i.e. on the northern side and for that purpose, a curve has been made in the road and the petitioners' shops-cum-residence are to be demolished for the said purpose. According to the petitioners, the action of the respondents is prima facie a malafide action and it is taken only with a view to favour and benefit Kamdar Society, who had contacts with higher authorities. 5. It is also the case of the petitioners that they have purchased the shops-cum-residence from the owners of the land of Survey No. 191/1 and 191/2 in the year 1970 and since then, the petitioners are doing petty businesses in the said shops- cum-residence and are running their livelihood to feed their families. The landowners have sold the shops-cum-residence to the petitioners and other lands were also sold to some other persons and thereafter, they have lost their interest in the lands. In the year 1986, the eastern part of the Ahmedabad, namely, Rajendra Park Road etc. was vested in the respondent No. 2 Corporation and prior to that the lands in question were given under the Odhav Nagar Panchayat and the said constructions were made as per the rules and SCA/24715/2006 5/32 JUDGMENT regulations of the Panchayat after taking permission from the Nagar Panchayat. After the lands in question came within the limits of the respondent No. 2 – Corporation, the Town Planning Scheme appears to have been prepared. While preparing the draft scheme, the survey of the area was not properly done and the Town Planning Scheme came to be drafted without making any survey of the lands and the constructions made on the said lands. As per the provisions of the Gujarat Town Planning and Urban Development Act, it is necessary to make a survey of the lands and the constructions on the lands and it is the bounden duty of the Town Planning Officer to see that the existing construction is not disturbed. It is the say of the petitioners that no such care was taken and the scheme was prepared. At no point of time, the petitioners were given any notices at the time of preparing the Scheme. 6. In the year 1972, a Draft Scheme was prepared in which some portion of the land of the petitioners were included. The said portion included the residential part of the petitioners and hence, the petitioner had raised objections. After receiving the said objections, the respondent No. 2 – Corporation had sanctioned another Draft Scheme in which the front portion of the petitioners' land was included. The preliminary Town Planning Scheme No. 49 came to be SCA/24715/2006 6/32 JUDGMENT sanctioned on 20.02.2004 and in the said Town Planning Scheme, 100 feet road has been given a curve in which the shops-cum-residence of the petitioners are greatly affected and on the other side of the road i.e. on the northern side, 20 feet of wide strip of land, which, belongs to the Government has been given extra to the land owners of the northern side i.e. Kamdar Society. In the Draft Scheme, the road was straight and thereafter in the preliminary scheme, the road has been given a curve to give benefit to the said persons. The petitioners were not aware of this development and now at this late stage, the petitioners were informed by the authorities that it is a matter of days that the shops-cum- residence would be demolished if they would not remove their construction by themselves. 7. Mr. Y. N. Oza, learned Senior Counsel appearing with Mr. Apurva R. Kapadia and Ms. Srushti A. Thulja for the petitioners submitted that the action of the respondents is prima facie bad, illegal and suffers from the vices of malafide. It is well settled position that the roads are to be made straight and only in unavoidable circumstances, the curves in the road are to be made. In the present case, initially, the road was straight but with a view to save the land and to give more marginal land to Kamdar Society, the curve has been made in the road. Initially, in the straight road, that was to SCA/24715/2006 7/32 JUDGMENT be constructed under the Town Planning Scheme, a part of the land from both the sides of the road was to be included. The owners of the northern part of the land i.e. the side opposite to the land owned by the petitioners, were even given a notice of payment of compensation in lieu of the land that is to be included under the Town Planning Scheme prepared in 1985. But for some apparently malafide and political reasons, a new Town Planning Scheme came to be prepared in which a curve was given to the straight road in such a manner that shops-cum-residence of the petitioners will be erased from the face of the map, just to favour members of the Kamdar Society. Mr. Oza has further submitted that it was incumbent upon the respondents to make the survey of the lands and the constructions made on the lands in the areas where the Town Planning Scheme is to be prepared but the respondents have failed to do so and without making proper survey of the lands and the constructions, have prepared the Town Planning Scheme No. 49, which deserves to be quashed and set aside. 8. Under the provisions of the Act, it is incumbent upon the respondents to invite objections while preparing the Scheme. The petitioners are in possession of the shops-cum-residence since 1970 and the scheme was framed in the year 1986, but at no point of time, any notice was issued and/or served to the SCA/24715/2006 8/32 JUDGMENT petitioners, otherwise, the petitioners would have raised objections and the present situation would not have arisen. He has further submitted that when the preliminary scheme has been finalised, respondents came to the shops-cum- residence and marked the boundaries and informed the petitioners that if they themselves did not remove the constructions made by them, then they would remove the constructions. He has further submitted that a resolution was passed in the Corporation on or around 08.06.2005 wherein it is stated that in the year 1986, the Town Planning Scheme has been prepared but that has not been prepared without stating the situation of the area and the constructions etc. made thereunder and large number of constructions of shops- cum-residence and houses are made in the northern and eastern zone for the persons belonging to poor or middle class strata and, therefore, with a view to consider their position, it is necessary that the Town Planning Scheme should be revised and the Scheme should be varied. For this purpose, the Town Planning Scheme Review Committee was formed under the said resolution and thereafter, Town Planning Scheme was framed without adhering to the provisions of the law and without making any survey of the constructions and the road etc. and, therefore, the said Town Planning Scheme deserves to be quashed and set aside. SCA/24715/2006 9/32 JUDGMENT 9. Mr. Oza has further raised a legal issue and submitted that after the constitutional amendment inserted by way of Part IX (A) of the Constitution, Ahmedabad Municipal Corporation will have no jurisdiction or any right to act upon any Town Planning Scheme in a development plan, which has not been prepared by the Committee for metropolitan planning. Sections 9 to 21 of the Town Planning Act deals with preparation till the revision of the development plan. It is only after the development plan is sanctioned that the Town Planning Scheme can be framed in the area where the development plan operates. In other words, development plan for the entire urban development authority would be one and in that plan, there would be as many number of Town Planning Schemes as the authority may require. But after the amendment in the constitution, which came into effect from 01.06.1993, it will be the Committee for Metropolitan Planning under Article 243 ZE which will have authority to prepare plan and forward it. It is only after that plan, which the Committee for Metropolitan planning prepares and sends it for approval, that the plan can be sanctioned with or without modification and only thereafter the Town Planning Scheme can be framed in the area where the plan operates. He has, therefore, submitted that Article 243 ZE makes it obligatory on the every State legislature to bring its laws in consonance with the constitutional amendment. He has SCA/24715/2006 10/32 JUDGMENT further submitted that as per the provisions contained in Section 243 ZF, if any inconsistent law is in existence, it shall remain in force only for a period of one year and no longer. Therefore, the Town Planning Schemes which have been prepared in the development plan, which is not prepared and forwarded by Committee for Metropolitan Planning is a nullity and, therefore, no action can be taken if the Town Planning Scheme is prepared in a development plan which is not in consonance with the mandate of Article 243 ZE. Any state law permitting any area development authority to prepare the plan and forward it to the State Government for its sanction, would run counter to the mandate of Article 243 ZE. In support of this submission, Mr. Oza relied on the decision of the Hon'ble Supreme Court in the case of Ahmedabad Urban Development Authority V/s. Manilal Gordhandas and others, AIR 1996 SUPREME COURT 2804 wherein it is held that the the draft development plan submitted to State Government by a municipal corporation, under Bombay Town Planning Act could not be sanctioned by the State Government after the repeal of Bombay Act and enforcement of the Gujarat Act of 1976. Provisions of Section 124(2) of the Gujarat Act would not save such plan as the provisions of Sections 9 to 17 of Gujarat Town Planning Act are inconsistent with Sections 7 to 10 of the Bombay Town Planning Act. SCA/24715/2006 11/32 JUDGMENT 10.Mr. Oza has also invited our attention to the constitutional provisions contained in Article 243 W which makes it clear that Municipality has to be bestowed with such powers in implementing the scheme by an act of Legislature. There is absolutely no piece of legislation in the present case, which, empowers the Municipality to implement the Scheme as envisaged under Article 243 W. Thus, for implementation of scheme, there has to be a legislation enacted by the competent State Legislature which is missing in the present case and hence, the scheme deserves to be quashed and set aside. 11.Mr. Oza has invited our attention to the statement of objects / reasons to 73rd and 74th amendment to the Constitution of India. He has also invited our attention to the speech of Minister of Rural Development and Report of National Commission for review of working of the Constitution. On the basis of these documents as well as the authorities, Mr. Oza has strongly urged that the present Town Planning Scheme which is based on the development plan prepared by the area development authority is contrary to the constitutional provisions and hence, it deserves to be quashed and set aside. He has further submitted that as per the constitutional mandate contained in Article 243 ZE, the State Government SCA/24715/2006 12/32 JUDGMENT has failed to constitute the Committee for Metropolitan area and after that amendment, only the committee is empowered to prepare the development plan for the entire area and in absence of such committee as well as development plan, no scheme can be said to be in existence. He has, therefore, submitted that the present scheme deserves to be quashed and set aside. 12.The use of the word 'may' in Article 243 ZE shall be read as 'shall' and no discretion is left with any one as it is constitutional mandate to make provision with respect to the composition of the Metropolitan Planning Committee. In support of this submission, Mr. Oza has relied on the decision of the Hon'ble Supreme Court in the case of Sub-Committee on Judicial Accountability V/s. Union of India and others, (1991) 4 SUPREME COURT CASES 699 wherein the Hon'ble Supreme Court has held that use of the word 'may' in clause (5) of Art. 124 indicates that for the 'procedure for presentation of address' it is an enabling provision and in the absence of the law the general procedure or that resolved by the House may apply but the 'investigation and proof' is to be governed by the enacted law. When a provision is intended to effectuate a right – here it is to effectuate a constitutional protection to the Judges under Article 124 (4) – even a provision as in Article 124 (5) which SCA/24715/2006 13/32 JUDGMENT may otherwise seem merely enabling, becomes mandatory. The exercise of the powers is rendered obligatory. The use of the word 'may' in Clause (5) does not, therefore, necessarily indicate that the whole of clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapacity or not. 13.Mr. Oza further submitted that the Town Planning Scheme must be framed in the manner in which it is laid down under Article 243 ZE of the Constitution. The manner of finalizing the scheme is prescribed in the Article 243 ZE of the Constitution and hence, the act must be done in that manner only. He relied on the decision of the Hon'ble Supreme Court in the case of Babu Verghese and others V/s. Bar Council of Kerala and others, (1999) 3 SUPREME COURT CASES 422, wherein it is held that it is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (1875) 1 Ch D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind App 372 : AIR 1936 PC 253 who stated as under: "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." SCA/24715/2006 14/32 JUDGMENT This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan, AIR 1961 SC 1527. These cases were considered by a Three Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognized as a salutary principle of administrative law. 14.Mr. Prashant G. Desai, learned advocate appearing for the Ahmedabad Municipal Corporation, on the other hand, strongly opposed granting of any relief to the petitioners in the present petition. He relied on the affidavit-in-reply filed on behalf of the respondent – Corporation. He has further submitted that the Town Planning Scheme No. 49 is sanctioned as preliminary scheme and it has become part of the Act under Section 65 (3) of the Gujarat Town Planning and Urban Development Act. He has further submitted that the Ahmedabad Municipal Corporation is the implementing authority of the Town Planning Scheme and the Corporation is bound to implement the Town Planning Scheme sanctioned by the State Government under Section 65 of the Act. He has further submitted that as held by the Hon'ble Supreme Court in the case of Municipal Corporation for Greater Bombay SCA/24715/2006 15/32 JUDGMENT and another V/s. Advance Builders (India) Private Limited and others, AIR 1972 SC 793, the Corporation is under obligation to perform its duties in accordance with the provisions of the Act. The responsibility of removing the hut, sheds, stables and other structures which contravene the scheme is that of the Corporation. The Hon'ble Supreme Court has directed the Corporation to remove the hutments within one year in the said case. He has, therefore, submitted that it is the duty of the Corporation to implement the Town Planning Scheme. The petitioners are admittedly on a Town Planning Scheme road which has become final and, therefore, the argument that the Corporation is arbitrarily or malafide removing the petitioners cannot be sustained. 15.Mr. Desai has further submitted that though the contention was raised before the Court that the petitioners are the owners of a particular portion of the land, no such evidence is produced before the Court. The preliminary scheme is sanctioned and no objections were taken by the petitioners at any point of time and, therefore, at this stage such argument cannot be sustained. The petitioners were given notice under Section 68 read with Rule 33 (old Section 53 read with Rule 27) and after following the due procedure of law, the Corporation is removing the shops-cum-residence of the petitioners. SCA/24715/2006 16/32 JUDGMENT 16.With regard to the arguments raised by Mr. Oza in respect of Articles 243 ZE, Mr. Desai has raised preliminary objection that no prayer is made by the petitioners asking the Government to form Metropolitan Planning Committee. Not only that the Gujarat Town Planning and Urban Development Act (Old Bombay Town Planning Act, 1954) was held to be a valid law in various supreme Court decisions. The object and purpose of Article 243 ZE is entirely different from the object and purpose of the Gujarat Town Planning and Urban Development Act, 1976 and, therefore, it has nothing to do with the provisions of the Gujarat Town Planning Act. Mr. Desai has further submitted that even as per the provisions contained in Article 243 ZE, the Town Planning Act is not the law relating to municipality. In the case of Maneklal Chhotalal V/s. M. G. Makwana, AIR 1967 SC 1373, the Constitutional Bench of the Hon'ble Supreme Court has held that the state legislature is competent to legislate the Town Planning Act either under Entry 18 of List-II or under Entry 20 of List-III. It is also held therein that the planning has an object of social and economic aim. Socially successful planning tends to make lives happier because it results in physical environment and the economic result of good planning, of course conduced to increase happiness. He has, therefore, submitted that the Town Planning Act is not the SCA/24715/2006 17/32 JUDGMENT law relating to municipalities which is inconsistent with the provisions of this part of the Constitution. 17.Mr. Desai has also invited the Court's attention to the provisions contained in Article 243 W wherein it is provided that the legislature of a state may by law, endow the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self Government and such law may contain the provisions for devolution of powers and responsibilities upon municipalities subject to such condition as may be specified therein, with respect to (i) preparation of plans for economic development and social justice and (ii) the performance of functions and implementation of the Schemes as may be entrusted to them including those in relation to the matters listed in the 12th Schedule to the constitution. The matter came up before the Hon'ble Supreme Court in respect of the Maharashtra Town Planning Act in the case of Shanti G. Patel and others V/s. State of Maharashtra and others, 2006 (2) SCC 505, wherein it is held that in view of Article 243 W, the Maharashtra Town Planning Act does not ipso facto become ultravires the constitution. Mr. Desai has further submitted that there is clear distinction between economic development and social justice on the one hand, being functions of Municipalities as contemplated under Article 243 W and the SCA/24715/2006 18/32 JUDGMENT functions of Metropolitan Planning Committee as contemplated under Article 243ZE. The Hon'ble Supreme Court has held that it is economic and social development in respect of the Town