Case: K.L. Gupta &amp; Others Vs. Municipal Corporation of Greater Bombay &amp; Others

2. The petitioners are all owners of plots of land in areas round about Bombay, commonly known as Greater Bombay. They have all similar but separate grievances with respect to the development plan prepared and published under the Act. In Writ Petition No. 215 of 1966, the petitioners complaint is as regards his land being earmarked for the public purpose of a park in the Development Plan prepared under the Act. He seeks to prevent the respondents from giving effect to the said designation of lands in Development Plan and in particular, to have the third respondents order i. e. the Executive Engineer (Planning) (of the Municipal Corporation of Bombay) dated 11th August, 1964 to the effect that his lands were needed for the public purpose of a park quashed. In Writ Petition No. 228 of 1966 the prayer is that the designation of the petitioners land as being earmarked for recreation centre and for green belt in the development plan of P Ward of the City of Greater Bombay should be removed, that their lands should be redesignated as earmarked for industrial purpose, that the order of the Assistant Engineer, Bombay Municipal Corporation, rejecting, the petitioners proposal for construction of two factory buildings and lavatory blocks should be quashed and a declaration be made that Ss. 9, 10, 11, 12 and 13 of the Bombay Town Planning Act are ultra vires the Constitution of India. In Writ Petition No. 251 of 1966 the prayers include an order for quashing Resolution No. 1173 of December 19, 1963 and Resolution No. 343 of July 2, 1964 of the first respondent and for removal of the designation attached to the petitioners land as reserved for Government purposes in the Development Plan of P Ward of Greater Bombay. In Writ Petition No. 256 of 1966 the prayers are inter alia for the issue of writs declaring that the Development Plan submitted by the first respondent to the fourth respondent (including P Ward) on July 8, 1964 infringes the petitioners rights and directing the issue of a commencement certificate for the development and utilisation of the said land in the manner proposed. At the hearing, a further prayer was made for urging an additional ground in all the writ petitions challenging the validity of S. 17 of the Act3. We may consider the broad facts in Writ Petition No. 228 of 1966 by way of sample. The petitioners in this case are two persons who claim to be owners of land bearing S. No. 70, Hissa Nos. 4, 5 and 6 comprising an aggregate area of 31,641 sq. yds. approximately in village Pahadi at Goregaon in Greater Bombay. Their case is that they had applied through their architect on January 2, 1962 for permission to change the existing user of their lands by putting them to industrial use and had written a letter to the Municipal Commissioner of Bombay for that purpose by which they proposed to construct on a portion of the land in S. No. 70 Hissa No. 4 a shed for a factory and other necessary sheds. Along with the said letter, they gave a notice under S. 33 of the Bombay Municipal Corporation Act, 1888 of their intention to erect a factory shed on the said land with a request for approval thereof. On January 27, 1962 the Executive Engineer, Development Plan intimated the petitioners that as a major portion of the proposed factory shed intended to be constructed fall outside the heavy industrial zone in the green belt area as shown in the plan accompanying the letter and as the area was affected by net work of proposed 78 East West and 30 wide North South road under the development plan of the area, with only a small portion of the land shown coloured violet falling in the heavy industrial area, a commencement certificate could not be granted. By their letter dated March 13, 1962 the petitioners complained that the Executive Engineer, Development Plan had no authority to earmark any area for green belt and therefore he should reconsider the matter and grant a commencement certificate. On the same day, the petitioners also wrote to the Municipal Commissioner that inasmuch as they had not till then received the notice of disapproval or any further requisition concerning their application, they would place on record that their right to proceed with the construction of the intended shed had become absolute under S. 345 of the Bombay Municipal Corporation Act. On March 22, 1962 the Deputy Municipal Commissioner (Suburbs) acknowledged receipt of the letter. By letter dated April 18, 1962 the Executive Engineer, Development Plan, informed the petitioner that their request for a commencement certificate would not be reconsidered until the development plan was finalised. By their solicitors letter dated June, 13, 1962 the petitioners wrote to the 1st respondent, i. e. the Bombay Municipal Corporation, that the refusal to grant a commencement certificate was wrongful. This was followed up by a writ petition in the High Court of Bombay being Miscellaneous Petition No. 256 of 1962 challenging the said refusal as illegal and invalid. By order dated September 7, 1963 the High Court of Bombay allowed the petitioners application on the ground that the powers and functions of the Bombay Municipal Corporation under S. 12 of the Act had not been exercised by an officer prescribed under S.86 of the Act and the decision dated January 27, 1962 was liable to be set aside4. The development plan for Greater Bombay (D Ward) was adopted by the first respondent by resolution No. 1173 on December 19, 1963. By this resolution the second respondent was directed to submit proposals of the development plan in respect of the remaining wards including ward P in which the petitioners land was situate. On January 9, 1964 the development plan for the remaining wards including Ward P was published by the second respondent in the name of the first respondent. In this the petitioners land was shown as partly reserved for public roads, for industrial purpose, the major portion being merely marked by green colour. The petitioners complaint is that the list of sites reserved for public purposes was for the first time submitted by the second respondent to the Development Committee on February 8, 1964 showing for the first time that a major portion of the petitioners lands were earmarked for a recreation centre. This list was recommended for acceptance by the Committee to the first respondent on June 24, 1964 and approved by resolution No. 343 on July 2, 1964 and forwarded to the State of Maharashtra, the fourth respondent herein, on July 8, 1984. The petitioners complaint that although in the plan as originally published the lands of the petitioners were earmarked partly for public roads in an industrial area and merely marked by green colour without any specification and designation, by resolution No. 343 the first respondent departed from the development plan and included a portion of the lands for recreation centre amongst the sites reserved for public purposes. According to the petitioners, this re-designation and modification was made although there were no suggestions before the first, second and third respondents in the light of which any modification could have been made under S. 9 of the Act. The petitioners by their solicitors letter dated April 16, 1964 requested the respondents to alter the development plan in accordance with the decision of the Bombay High Court and further demanded re-designation of their lands as reserved for industrial purpose. This matter was again taken up to the High Court of Bombay by way of petition No. 248 of 1904 challenging the refusal of the first and second respondents to modify the development Plan. This was rejected in limine by the High Court on July 6, 1964. The appeal therefrom being No. 42 of 1964 was also rejected on August 12, 1964. The petitioners case is that the High Court rejected petition No. 248 of 1964 on the view that they had no cause for complaint unless and until the first respondent refused permission to commence construction. They therefore submitted building plans through their architect on January 9, 1965 for construction of a factory shed with a prayer for the issue of a commencement certificate. The third respondent i.e. the Assistant Engineer, Bombay Municipal Corporation by letters dated January 25, 1965 and February 13, 1965 rejected the petitioners proposal for construction of factory building on their lands on the ground that the lands fell in the reservation for playgrounds and 200 feet wide green belt in the development plan5. The petitioners again went up to the Bombay High Court on July 2, 1965 by another petition No. 312 of 1965 for the issue of a writ of mandamus for setting aside the orders of the third respondent dated January 25, 1965 and February 13, 1965 and directing the respondent to remove the designation of recreation centre and green belt from the petitioners land and to designate the entire holding as industrial area in the development plan. The petition was rejected in limine by the Bombay High Court on July 6, 1965. An appeal therefrom came for hearing on August 10, 1965 when an order was made by consent directing the writ petition to be placed for hearing before a Division Bench. Ultimately, however, this was dismissed by judgment dated April 25, 1966. According to the petitioners, they had not challenged the constitutionality of the Act in their petitions.

Court's reasoning:
26. In our opinion, the argument though at first sight forceful cannot be accepted. As already noted, a development plan for an area like Greater Bombay cannot be chalked out or put in blueprint in the space of a few months. We have seen that in order to perform this enormous task an Advisory Committee composed of representatives of various public bodies was formed to advise the Municipality with respect thereto and the public were freely invited to take part therein. Before anything could be done, a survey of the area had to be made and a map thereof prepared. Such a map would show the already existing industrial areas, public amenities, roads and bridges and would give anybody wishing to find out some idea as to the lines on which the development of the city should proceed. One would then have to take into consideration the existing roads, industrial establishments and public amenities already there because the plan as emerging finally could not be made on a clean slate but had to take into account already existing things and the difficulties which would have to be met and overcome when different parts of the area were to be earmarked for special purpose. Plans for various Sections of Greater Bombay were prepared with the assistance of the Advisory Committee. The tentative development plans in this case were displayed for public inspection during the year l960-6l. Within a space of two years, therefore, the local authority had some guidance in the matter of granting or refusing a commencement certificate for development work of any land proposed to be taken up by any of the petitioners. A reference to the tentative plans would show whether the area within which the development work was proposed to be carried on was set apart for Industrial, commercial, residential or agricultural purposes, or whether it was to be set apart for public purposes. It might be that as a result of the modification of the tentative plan, the area which at first fell under the designation "residential" came to be included in the area designated as "industrial" or even came to be embraced for designation for a public purpose27.In all such cases, where large powers are given to certain authorities the exercise whereof may make serious inroads into the rights of property of private individuals, we have to see whether there is any guidance to be collected from the Act itself its object and its provisions, in the light of the surrounding circumstances which made the legislation necessary taken in conjunction with well known facts of which the court might take judicial notice29. In our opinion, the observations made in the above case apply with equal force to the facts of this case. The affidavits used show what an enormous increase of population has taken place in Bombay in recent years. One cannot lose sight of the fact that the growth of the city and the industrialisation of its surroundings are going on apace and if factories are allowed to be set up just where the owners of certain plots of land want to erect them, it would render large areas unfit for residential purposes. In the area covered by Greater Bombay, the municipal authorities have to proceed with caution when sanctioning any development work. It is well known that a master plan for Greater Bombay was prepared even before the Act came into force but by the time the Act was enacted the same was found to be out of date. The preparation of a development plan for Greater Bombay was an immense task and the authorities proceeded with it in a manner to which no exception can be taken. They formed an Advisory Committee, prepared a tentative development plan and ultimately the development plans for different wards. At all stages, suggestions and objections were received and wide publicity was given to the steps which were being taken from time to time. Although Section 12 does not in terms state the grounds on which the permission of the local authority to sanction development work may be withheld, it is clear that the authority had to proceed on the basis of the tentative plan. The legislature was aware that a good deal of time might elapse before the development plan was finally sanctioned and that is why provision was made for extension of the period of four years, if need be from time to time. After a declaration under Section 4 is made, the map is published under Rule 3 and the suggestions are received, the municipal authorities must consider in the light of material before them as to whether the intended building operations ought to be sanctioned or not. Once the development plan was before it, of course, there was no difficulty.In our opinion, there was enough guidance in the Town Planning Act to enable the Municipal Commissioner to come to a conclusion as to whether a particular commencement certificate should be granted or not and the power exercisable under the Sections was neither uncanalised nor arbitrary. In all these four petitions, reasons were given as to why the commencement certificate was withheld.It may be that the reason at first given was not adhered to later on, but that was because by then the plan had undergone a modification30. With regard to the complaint that the period of ten years fixed under Section 11 (3) of the Act was too long, and an unreasonable restriction on the rights of a land owner to deal with his land as he pleased,it is enough to say that in view of the immensity of the task of the local authorities to find funds for the acquisition of lands for public purposes, a period of ten years was not too long.In this case the authority had to deal with an area measuring about 169 sq. miles or roughly an area measuring 17 miles x 10 miles which is larger than most of our big cities without their suburbs. The preparation of a development plan for such an area must take considerable period of timeIn our opinion, apart from the aspect of the question that the Act has been found, after consideration of its different Sections, to be a valid enactment, we are not impressed by any of the arguments raised before us. The argument that a person was given no opportunity of meeting the objections raised by others with regard to the development plan has no force in the light of the facts disclosed in the affidavits. After all it is for the authority concerned to prepare the plan after hearing all the parties concerned. If the authorities were to hear all the parties with regard to all the suggestions made giving them separate and independent hearings, no development plan could ever be prepared. The authority was not concerned with considering the advantages or disadvantages which might accrue to a particular person or a group of persons owning lands in different parts of the area concerned, but it had to go by the larger interest of the population at large and the generations to come.The affidavits show that nothing was done haphazardly. Suggestions and objections at all stages were carefully considered. The assistance of committees of experts was taken and the plan emerged only after an immense amount of labour had been bestowed on its preparationThe fact that no appeal from the decision under Section 13 was provided for is a matter of no moment for the authority under Section 13 is no less than the Municipal Commissioner himself or the Chief Officer of the Municipal Borough or a person exercising the power of an Executive Officer of any local authority.When the power had to be exercised by one of the highest officers of the local authority intimately connected with the preparation of the development plan in all its stages, it is difficult to envisage what other authority could be entrusted with the work of appeal or revision. The preparation of the tentative plan or the final development plan was not something which was left to the pleasure or discretion of the local authority. Immense pains were taken by a vast number of people and it was their combined effort and skill which went to the making of the development plan preceded by the tentative plan. Section 13 prescribes that the local authority should make an inquiry before granting or refusing a commencement certificate. The Authority must therefore look into all material available to it including the tentative plans and the final development plan and then make up its mind as to whether a commencement certificate should be granted or not.If the provisions of the Act are borne in mind and the rules framed thereunder complied with, as appears to have been done in these cases, there was little or no scope for the local authority acting arbitrarily under Section 13 of the ActThere it was said that the restriction of the power of eviction would have to be determined by the speed with which the authorities were able to make provisions for affording the slum dwellers better living conditions. No one can be heard to say that the local authority after making up its mind to acquire land for a public purpose must do so within as short a period of time as possible. It would not be reasonable to place such a restriction on the power of the local authority which is out to create better living conditions for millions of people in a vast area. The finances of a local authority are not unlimited nor have they the power to execute all schemes of proper utilisation of land set apart for public purposes as expeditiously as one would like. They can only do this by proceeding with their scheme gradually, by improving portions of the area at a time, obtaining money from persons whose lands had been improved and augmenting the same with their own resources so as to be able to take up the improvement work with regard to another area marked out for development. The period of ten years fixed at first cannot therefore be taken to be the ultimate length of time within which they had to complete their work. The legislature fixed upon this period as being a reasonable one in the circumstance obtaining at the time when the statute was enacted. We cannot further overlook the fact that modifications to the final development plan were not beyond the range of possibility. We cannot therefore hold that the limit of time fixed under Section 4 read with Section 11 (3) forms an unreasonable restriction on the rights of a person to hold his property36. Towards the end of the hearing counsel for the petitioners submitted that Section 17 of the Act might be left out of consideration for the purpose of these petitions and learned counsel for the respondents were agreeable to this course. We therefore do not express our views about the validity or otherwise of this Section.