Case: Municipal Corporation For Greater Bombay And Anr Vs. Advance Builders (India) Pvt. Ltd. &amp; Others

2. The area under the Town Planning Scheme, with which we are now concerned, originally fell within the municipal limits of the Bandra Municipal Committee. That Committee, by a resolution dated 15th June, 1948, declared its intention to frame a Town Planning Scheme under Section 9 (1) of the Town Planning Act, 1915. Thereafter, the Municipal Committee was abolished and the area of that municipality was absorbed within the limits of the Bombay Municipal Corporation. The Corporation, which, for the purpose of the Act, now became the local authority, applied to the Government, and on 7th May, 1951, the Government of Bombay sanctioned the making of the Scheme. On 30th April, 1953, a draft scheme was prepared and published as required by the Act and it was duly sanctioned by the Government on 6th May, 1954. On 17th August, 1954, an Arbitrator was appointed to finalize the scheme and the Arbitrator formulated the final scheme and published the same in the Official Gazette, forwarding, at the same time, the Scheme to the President of the Tribunal appointed under Section 22 of the Act. In the meantime, the Town Planning act, 1915 was replaced by the Town Planning Act, 1954 which came into force on 1st April, 1957. Under Section 90 of the new Act, the final Scheme already formulated was adopted for continuance and implementation. Finally, on 21st August, 1958, the final Scheme was sanctioned by the Government which directed that the Scheme should come into force from 1st January, 1959.3. The Scheme as already stated, was known as the Bombay Town Planning Scheme, Santacruz No.VI and covered an area of about 169 acres divided into two parts by the Ghodbunder Road which ran from south to north. We are not concerned here with the western part. We are concerned with the eastern part, the total area of which was about 54 acres. A part of this area belonged to the N. J. Wadia Trust. In a Trust Petition made to the High Court, a Receiver was appointed on 8th February, 1948 of this trust property. It appears that unauthorised huts, sheds and stables had been built in this area and the whole of it was full of slums, the removal of which was one of the objects of introducing the Town Planning Scheme. As the Arbitrator has stated in his FinalFinal Scheme as now drawn up provides for the construction of new roads with necessary storm-water drains on the sides of the roads, certain public sites within the area such as School, Playground, Market, Maternity Home etc. The construction of new roads, the provision of public sites and the removal of slums will provide for the development of this part of the Suburb on properpursuance of the Scheme, the part of land, which belonged to N.J. Wadia Trust and which was now in the possession of the Receiver, became a part of the Scheme and, under the Scheme, a number of final plots were allotted to the Receiver. On 31st July, 1962, the Receiver transferred a total area of 69,625 sq. yards comprised in 41 final plots being Nos. 106 to 116 and 118 to 147 to respondents 1 to 3 and one Gardi. Gardi sold his plots in due course to respondents 4 and 5. So, between the five respondents, they became the owners of the above 41 final plots.4. As already noted, the Scheme came into force on 1st January, 1959 and, though, under the Scheme, a period of 2 to 3 years had been allowed for the purpose of implementing the Scheme, no action was taken by the Corporation, perhaps due to the resistance offered by the slum-dwellers. The respondents, from whom the betterment charges, etc. were being recovered by the Corporation called upon the Corporation to implement the Scheme by removing slums, sheds and temporary structures and also to provide roads and drains as directed in the Scheme. The Corporation, however, remained inactive and, hence, respondents 1 to 3 filed Writ Petition No. 474 of 1965 on the Original Side of the High Court on 13th October, 1965. By this petition, respondents 1-3 prayed to theto issue a writ of mandamus or a writ in the nature of mandamus against the appellants directing them to construct the roads and drains as indicated in the Town Planning Scheme and to complete the same for use within such time as may be fixed by the Court, and(2) to issue a writ of mandamus or any other appropriate writ directing the appellants to remove all the huts, sheds, stables and temporary structures from the 41 plots referred tolearned Judge held that, under the Town Planning Act and the Scheme, it was the primary responsibility of the Corporation, which was the local authority, to implement the Scheme and accordingly, the writs as prayed were substantially granted. In appeal, the Appellate Bench of the High Court confirmed the order of the learned Judges with only minor variations. Hence, the present appeal.

Reasoning:
8. It is not necessary to go through the several provisions of the Town Planning Act. There can be no doubt that the Corporation, as the local authority, is wholly responsible for the preparation and implementation of every development plan. The preamble shows that the Town Planning Act, 1954, which was intended to be a consolidating and amending Act relating to town planning, was enacted with a view to ensure that Town Planning Schemes are made in a proper manner and their execution is made effective. It was, therefore, necessary to provide that the local authority shall prepare a development plan for the entire area within its jurisdiction. By Section 3 of the Act, the local authority is required to carry out a survey of the area within its jurisdiction within a certain time and publish a development plan. In due course, such a development plan is sanctioned by the Government, but, in the meantime, by Section 12 of the Act, stringent restrictions are placed on the property owners in the matter of development of or construction on their private properties as soon as the local authority declares its intention to prepare a development plan. After the development plan is finally sanctioned by the Government, the next step is for the local authority to make one or more Town Planning Schemes as provided in Section 18. The rest of the Act is mostly concerned with the preparation of the Town Planning Schemes and S. 29 (1) (a) provides that, after the local authority has declared its intention to make a scheme under S.22, no person shall, within the area included in the scheme, erect or proceed with any building or work or remove, pull down, alter, make additions to, or make any substantial repair to any building, part of a building a compound wall or any drainage work or remove any earth, stone or material, or sub-divide any land, or change the user of any land or building unless such person has applied for and obtained the necessary permission of the local authority. These restrictions, though very stringent, are obviously in the interest of the preparation of the Town Planning Scheme, because, if structures come up when the scheme is being prepared, the whole object of town planning will be frustrated. The Arbitrator appointed under the Scheme has to lay out the roads, the drains and make provision for public places such as gardens, hospitals and the like and, if private owners start erecting structures of more or less permanent nature the cost of the Scheme might become prohibitive and the Scheme itself will flounder. Such is the importance of the Final Scheme as sanctioned by the Government that, under S. 51 (3), the Town Planning Scheme has the same effect as if it were enacted in the Act. The Scheme naturally deals with the disposition of the land in the whole area. Titles are displaced and regulations are made with directions as to how the whole of the Scheme is to be implemented. These regulations and directions have effect as if they were enacted in thewill be seen that all lands in the area which is subject to the Scheme to whomsoever they might have originally belonged, would absolutely vest in the local authority if, under the Scheme, the same are allotted to the local authority. As a necessary corollary to this, all rights in the original plots of the private owners would determine and if, in the Scheme, re-constituted or final plots are allotted to them, the same shall become subject to the rights settled by the Town Planning Officer in the Final Scheme. The original plots of one owner might completely disappear, being allotted to the local authority for a public purpose. Such a private owner may be paid compensation or a reconstituted plot in some other place may be allotted to him. This reconstituted plot may be also made subject to certain other rights in favour of others as determined by the Town Planning Officer. In other cases, the original plot of the owner may be substantially cut down and he may be compensated elsewhere by being allotted a smaller or a bigger piece of land in a reconstituted plot. The learned Attorney-General pointed out that, so far as the present case is concerned, the final plots coincide with the original plots of the private owners. That may be so; but that consideration is irrelevant for a proper construction of the statute. It is inherent in every town planning scheme that titles are liable to be displaced and an owner may get a reconstituted plot which belonged, prior to the Final Scheme, to some other owner. In such a case, if the original plot belonging to A was not encumbered by any unauthorised huts and A is allotted in the Scheme a reconstituted plot of another, encumbered or littered over with unauthorised sheds and huts, would it be just to say that A, who is to be put into possession under the Scheme, of the reconstituted plot, should take legal action for the ejectment of the hutment-dwellers? For ought we know he may be non-suited on the ground of limitation or adverse possession. In any case, the Scheme will, on the one hand, put an innocent owner to underserved trouble and, on the other, not achieve the object of removing the hutment-dwellers as speedily as possible, thus frustrating the very object of town planning. It is not as if such a situation was not visualised by the Legislature, because the very next section, viz., Section 54 gives ample powers to the local authority to do thewill, thus, be seen that Section 55 provides a self-contained code by which buildings and works situated in the whole of the area under the Scheme are liable to be removed or pulled down by the local authority if those buildings or works contravene the Town Planning Scheme. A proper implementation of the Scheme would undoubtedly entail considerable cost, but provision for the same is made in Chapter VII of the Act, Section 66 of which provides for the recovery of what are commonly known as betterment charges. The costs of the Scheme are to be met wholly or in part by a contribution to be levied by the local authority for each plot included in the Final Scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Town Planning Officer. The whole scheme of the Act, therefore, and especially Ss. 53 to 55 leave no doubt that it is primary duty of the local authority to remove all such buildings and works in the whole of the area which contravene the Town Planningis possible to construe this regulation as prospective in operation, because Regulation 9 provides that any person contravening any of the aforesaid regulations or any of the provisions of the Scheme is liable to be prosecuted and fined. As a part of the Scheme, there is a Redistribution and Valuation Statement which shows which are the original plots, who were the owners thereof, whether those plots were encumbered or leased out, who the mortgagees and lessees were, what is the number of the reconstituted or the final plot allotted to such owners, what contributions have to be made by the owners and what additions or deductions are to be taken into account while deciding the contributions. In the case of some of the final plots, certain rights are given and liabilities imposed and, in suitable cases, compensation also is directed to be paid. And, then, to this Redistribution and Valuation Statement eleven Notes are appended which are important. Note 1 says that all rights of mortgagors or mortgagees, if any, existing in the original plots are transferred to their corresponding final plots. Note 2 deals with the rights of lessors and lessees in the original plots. By Note 3, all rights of passage hitherto existing are extinguished. By Note 4, agreements in respect of original plots are transferred to the final plots. By Note 5, the tenures of all original plots are transferred to the corresponding final plots. Note 6 permits the original plot-owners to remove their detachable material on the plot if they are deprived of the same. They are required to remove their wire-fencing, compound wall, sheds, huts or other structures. They can do so within three months from the date on which the final Scheme comes into force, the idea being that the final plots must be clean plots for being allotted to another under the Scheme. This permission under Note 6 has given not because the local authority has no power to remove wire-fencing, huts, sheds, etc.; that power is there as already shown under Section 55. But this is a concession made in favour of the owner. Since the owner is required to remove himself from this plot, he is permitted to take away whatever material he could easily remove. And, then, Note 11, to which reference has already been made, provides that all huts, sheds, stables and such other temporary structures including those which do not conform to the regulations of the Scheme, are required to be removed within one year from the date the final Scheme comes into force. The Note refers not merely to huts, sheds, stables which do not conform to the regulations of the Scheme, but also to all huts, sheds, stables and such other temporary structures. Whosoever the owner or the occupant of the same might be, he is required to remove the same within one year from the date the Final Scheme comes into force. This is an important regulatory provision which has the effect as if enacted in the Act. If the owner or the occupant of these huts, sheds and stables does not remove the same within one year from the date the final Scheme comes into force, he would be contravening the provisions of the Scheme and, thereupon, the local authority will have the power under S. 55 (1) (a) to remove or pull down these huts, sheds, stables, etc. Note 11 has taken due note of the fact that, if the huts, sheds, stables, etc. are demolished, the owners or occupants thereof will become dishoused. Hence, further provision is made that persons thus dishoused will be given preference in the allotment of land or accommodation in Final Plot No.16 allotted to the Corporation. In other words, it is implicit in this Note that the Corporation may not hesitate to pull down or remove these huts and sheds, etc., because provision is already made for allotment of land in the Corporations Plot. The Note, therefore, indirectly establishes that it is the primary duty of the Corporation as the local authority to remove all offending huts, sheds, stables and temporary structures in the whole area under the Scheme and not merely from those areas which are allotted to the Corporation under the Scheme.It is clear, therefore, on a consideration of the provisions of the Bombay Town Planning Act, 1954 and especially the sections of that Act referred to above, that the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. It has been long held that, where a statute imposes a duty the performance or non-performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done (See Halsburys Laws of England, Third Edition, Vol.II, p.90).13. It was, however, contended by the learned Attorney-General that, after all, a writ of mandamus is not a writ of course or a writ of right but is, as a rule, a matter for the discretion of the Court. That is undoubtedly the case. It is pointed out by Lord Hathorley in Queenv. Church Wardens of all Saints, Wigan, (1875-76) 1 AC611 that upon a prerogative writ there may arise many matters of discretion which may induce the Judges to withhold the grant of it - matters connected with delay, or possibly with the conduct of the parties; but, as further pointed out by his Lordship, when the Judges have exercised their discretion in directing that which is in itself lawful to be done, no other Court can question that discretion in so directing, in the present case, the High Court has exercised its discretion in directing the issue of the writ and this Court, in an appeal by special leave, will not ordinarily question thatthe trustees had done their duty by admitting to the copyholds, the lord would have been entitled to a double fine instead of a single fine on the admittance of the heir. In these circumstances, the Court refused a mandamus to compel the lord to admit the heir as in the opinion of the Court, the effect of granting it would be to enable the trustees to evade payment of a double fine, and to commit a breach of trust by not acquiring themselves the legal estate in the copyholds. Nothing of that nature to disqualify the respondents in this case for a writ in their favour has been pointed out to us. The only submission of the learned Attorney-General is that so far as the huts, sheds, etc., which are within the final plots of the respondents are concerned, they must be presumed to be there with the permission of the respondents or their predecessors-in-title especially when it is known that some fee, compensation or rent was recovered by them from the owners or occupants of these huts and sheds. It is not the case that the petitioners, while, on the one hand, asking for a mandamus against the Corporation, are resisting the enforcement of the Scheme through the owners and occupants of the slums on the other. If the owners of these final plots merely recovered some amounts from the hutment dwellers by way of compensation or rent, that act cannot be regarded as importing any disqualification for the purposes of mandamus. After all their land was being used by others and, perhaps, the respondents are also liable to pay local taxes. We have not been shown one provision in the whole of the Act which requires the owners of the plots to take any action against the hutment-dwellers. The Scheme came into force in 1959 and it is an admitted fact that, till 1964, nothing at all was done by the Corporation to implement the Scheme. The respondents served notices on the Corporation to enforce the Scheme, but, for one reason or the other, the Corporation merely stalled effective action. We do not, therefore, think any adequate reasons have been given for refusing the writ.