Case ID: 2981

Judgment:
Appeal No. 1121 of 1970. Appeal by special leave from the judgment and order dated ' April 24	 1969 of the Bombay High Court in Appeal No. 2 of 1967. Niren Den	 Attorney General	 M. C. Bhandara	 P. C Bhartari	 J. B. Dadachanji	 O. C. Mathur and Ravinder Narain.	 for the appellants. section V. Gupte	 section J. Sarabjee	 B. R. Agarwala and A. J. Rana		 for respondent No. 1. Sharad Monohar and Urmila Sirur	 for the interveners. J. This is an appeal by special leave from an Order of the High Court of Bombay dated 24th April	 1969 in Appeal No. 2 of 1967	 substantially confirming the order passed by a single Judge of that Court in Writ Petition No. 474 of 1965. The appellants before this Court are the Bombay Municipal Corporation and the Municipal Commissioner of Bombay	 and the respondents are the owners of 41 final plots Nos. 106 to 116 and 118 to 147 under the Bombay Town Planning Scheme	 Santacruz VI. 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	 1963	 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 32 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 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. The Scheme	 as already stated	 was known as the Bombay Town Planning Scheme	 Santacruz No. VI and covered an area .of about 160 acres divided into two parts by the Chodbunder 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 411 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 Final Scheme	 : "The Final 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 proper lines. " In pursuance 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 Cardi. Cardi 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. 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 the Court : (1) to 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 to above. 412 The learned 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 Judge with only minor variations. Hence	 the present appeal. The controversy between the parties has been narrowed down in this Court. The learned Attorney General	 who appeared on behalf of the appellants	 did not dispute that	 so far as the roads and drains are concerned	 it was the primary obligation of the Municipal Corporation to provide the same in accordance with the Scheme. He also agreed that	 if there were any unauthorised structures	 huts	 sheds and the like on any part of the plots which vested in the Corporation for a public purpose	 the same were liable to be removed by the Corporation. His chief contention	 however	 is that the Corporation owed no duty to remove the un authorised structures situated in the private plots of the owners who	 in his submission	 were solely responsible to remove them. In any event	 he further submitted	 since the petitioners and their predecessors had authorised these structures and collected rent from the owners or occupants of these structures	 a writ of mandamus at their instance should not	 in the discretion of the Court	 be granted. The point of substance in this appeal is whether the Munici pal Corporation	 as the local authority under the Act owed a duty to remove the unauthorised structure	 even though those structures were on private final plots of the respondents. That the respondents could	 by having recourse to law	 eject the slum dwellers and remove the huts and structures would no	 be a relevant consideration if	 under the Act and the Scheme	 the duty was imposed on the local authority. The Scheme had been framed with a view to clear the area of slums. In fact	 Note 11 attached to the Redistribution Statement under the Scheme directs that "all huts	 sheds	 stables and such other temporary structures including those which do not conform to the regulations of the Scheme	 shall be removed within one year from the date the Final Scheme comes into force. Persons thus dishoused will be given a preference in the allotment of land or accommodation in Final Plot No. 16. " We will have occasion to consider this Note No. 11 at a later stage; but what is to be noted now is that the slums were to be cleared and the dishoused persons were to be accommodated in final plot No. 16 which was specifically allotted to the Corporation. Before turning to the provisions of the Act and the Scheme for the determination of the issue before us	 it may be necessary 413 to note here that the writ issued by the learned single Judge with regard to these huts	 sheds and structures was clarified in appeal by limiting the writ as follows: "that the respondents 1 and 2 (the present appellants) do remove within one year from today all unauthorised huts	 sheds	 stables and other temporary structures standing and lying on the petitioners ' (the present respondents) said forty one final plots. " We asked Mr. Gupte	 learned counsel for the respondents	 as to what exactly was meant by the term "unauthorised" whether it meant not authorised by the owners of the plots or not authorised by the Municipal Corporation or something else. He informed us that the relief that he really wanted was in terms of section 55 of the Act which gives the power to the local authority to remove	 pull down or alter any building or other work which contravenes the Town Planning Scheme. If any of the structures or huts and sheds	 etc. which were situated in these 41 plots did not contravene the Town Planning Scheme	 he did not and could not ask for a writ of mandamus for the removal of the same. In view of this submission	 the controversy is further narrowed down and the only question. with which we are now concerned	 is whether the Corporation is bound under the law to remove such of the structures	 sheds and huts situated in the respondents ' plots in so far as. they contravene the Town Planning Scheme. In our opinion	 the Corporation is so bound. 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 8 LI340Sup. CI/71 414 rest or the Act is mostly concerned with the preparation of the Town Planning Schemes and section 2 9 (1) (a) provides that	 after the local authority has declared its intention to make a scheme under section 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 subdivide 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 section 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. The Arbitrator appointed under the Scheme has to lay out enacted in the Act. Against this background	 we have to determine the question in issue before us. The important provisions	 bearing upon the controversy	 are sections 53	 54 and 55 of the Act. Section 53 provides : "On the day on which the final scheme comes into force	 (a) all lands required by the local authority shall	 unless it is otherwise determined in such scheme	 vest absolutely in the local authority free from all encumbrances; (b) all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by the Town Planning Officer. " It will be seen that all lands in the area which is subject to the Scheme	 to whomsoever they might have originally belonged	 415 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	 reconstituted 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 aught 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 undeserved 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 the needful. That section says : "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 may	 in accordance with the prescribed procedure	 be summarily evicted by the local authority. " All that the local authority has to see for the purpose of section 54 is whether any person is occupying any land in disregard of the rights determined under the final scheme and	 if he does so	 he 416 is to be summarily evicted by the local authority. Section 55 is more explicit on the question. Sub section (1) is as follows: "(1) On and after the day on which the final scheme comes into force the local authority may after giving the prescribed notice and in accordance with the provisions of the scheme (a)remove	 pull down	 or alter any building or other work in the area included in the scheme which is such as to contravene the scheme or in the erection or carrying out of which any provision of the scheme has not been complied with; (b) execute any work which it is the duty of any person to execute under the scheme in any case where it appears to the local authority that delay in the execution of the work would prejudice the efficient operation of the scheme. " Sub clause (a) of the sub section gives the local authority power to remove	 pull down or alter any building or other work in the whole of the area included in the scheme if such building or work contravenes the scheme	 or if	 in the erection or carrying out of the building or work	 the provision of the scheme has not been complied with. In short	 every building or work	 which is in contravention of the Town Planning Scheme	 wherever it may be in the whole of the area under the Scheme	 could be removed pulled down or altered by the local authority which alone is named as the authority for that purpose. For example	 the Scheme in this case	 by its Note 11	 requires that all huts	 sheds	 stables and such other temporary structures	 which do not conform with the Scheme	 are liable to be removed within one year of the Scheme which is regarded under section 51(3) as part of the Act. If the owner or occupant of the temporary structure does not remove the structure within one year	 the local authority is empowered to do that. Sub clause (b) takes care of any work which	 under the Scheme	 any private person is liable to execute in a certain time. If there is delay in the execution of the work	 the local authority is given the power to execute the work. The question then would arise : at whose cost this work is to be executed ? For that	 provision is made in sub section (2) which is as follows: "(2) Any expenses incurred by the local authority under this section may be recovered from the persons in default or from the owner of the plot in the manner provided for the recovery of sums due to the local authority under the provisions of this Act. " 417 The expenses incurred by the local authority in this connection are recoverable from the person in default	 viz.	 the person indicated in the Scheme and who has defaulted in executing the work. To make sure that the expenses are recovered	 sub .S. (2) makes them recoverable not merely from the p erson in default	 but also from the owner of the plot. Disputes are likely to arise whether any building or work contravenes a Town Planning Scheme and	 so	 provision is made for the same in sub section (3) which is as follows : " (3) If any question arises as to whether any building or work contravenes a town planning scheme	 or whether any provision of a town planning scheme is not complied with in the erection or carrying out of any such building or work	 it shall be referred to the State Government ' or any officer authorised by the State Government in this behalf and the decision of the State Government or of the officer	 as the case may be shall be final and conclusive and binding on all persons. " It will	 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 VIII 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 or the Act	 therefore	 and especially sections 53 to 55 leave no doubt that it is the primary duty of the local authority to remove all such buildings and works in the whole of the area which contravene the Town Planning Scheme. The Scheme and the regulations made thereunder must be read as supplemental to the Act and	 when that is done	 there is no room for any doubt whatsoever that the local authority is entirely responsible for removing the huts	 sheds	 stables and other temporary structures which contravene the Town Planning Scheme. The Scheme gives a statement of works to be constructed under the Scheme which comprises a number of roads and the drainage system. The Scheme then specifies which final plots under the Scheme are reserved for public or municipal purposes. In the section dealing with the regulations controlling the development of the area under the Scheme	 the various final plots are 418 mentioned and directions have been given as to how they are to be utilised. Regulation 6 is as follows : "No hut or shed whether for residential user or otherwise	 or temporary moveable shops on wheels or such other temporary structures shall be allowed within the area of the Scheme. " It is 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 been 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	 419 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 this final Scheme comes into force	 he would be contravening the provisions of the Scheme and	 thereupon	 the local authority will have the power under section 5 5 (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 Corporation 's 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. Our attention was invited by the learned Attorney General to the Maharashtra Regional and Town Planning Act	 1966 which came into force on 11 th January	 1967. The Act came into force when the present litigation was pending in the High Court; but it does not appear that any reference was made to the provisions of that Act. It is a more comprehensive legislation with regard to development and planning than the Bombay Town Planning Act	 1954 to the provisions of which we have already made a reference. By section 165(1) of the Maharashtra Regional and Town Planning Act	 1966	 the Bombay Town Planning Act	 1954 is repealed; but	 by virtue of sub section (2) of section 165	 all Schemes finalised under the Bombay Town Planning Act	 1954 are deemed to have been framed under the corresponding provisions of this Act and the provisions of this Act shall have effect in relation thereto. The more important provisions of the Bombay Town Planning Act	 1954	 to which a reference has been made by us above. were sections 53	 54 and 55. The corresponding provisions in the new Act are sections 88	 89 and 90. Section 53 consisted of two clauses (a) and (b). They are the same as the first two clauses (a) and (b) of the corresponding section 88. One% more clause (c) is added which provides that the Planning Authority shall hand over possession of the final plots to the owners to 420 whom they are allotted in the final Scheme. The Planning Authority is the same as the local authority under the Bombay Town Planning Act	 1954 in the present case	 the Bombay Municipal Corporation. There was no specific provision in section 53 directing the local authority to hand over possession of the 	 'final plots; but	 in our opinion	 that was implicit in the Scheme when the original plots were reconstituted and the reconstituted plots were allotted to the owners of the original plots. Clause (c) of section 88	 therefore	 merely clarifies what was implicit in section 53 of the old Act. Section 54 of the old Act corresponds to sub section (1) of section 89 of the new Act. Sub section (2) of section 89 is a new provision which makes it obligatory upon the Commissioner of Police and the District Magistrate to assist the Planning Authority in evicting per sons from the final plots when there is unlawful opposition to the same. Section 55 of the old Act corresponds to section 90 of the new Act and is practically the same in content. In our opinion	 therefore	 there is nothing in the new Act which requires us. to reconsider the above finding. 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 Halsbury 's Laws of England	 Third Edition	 Vol. II	 p. 90). It was	 however	 contended by the learned Attorny 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 Hatherley in The Queen vs The Church Wardens of All Saints	 Wigan and Others(1)	 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 (1) 421 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 that discretion. In The Queen vs Garland and Another(1) which was cited by the learned Attorney General before us	 mandamus was refused practically on the ground that the petitioners therein had not come before the Court with clean hands. In that case	 the trustee	 	 proved the will of the testator	 but not claim themselves to be admitted to the copyholds	 though they were bound to do so	 and called upon the lord of the manor to admit the infant heir by his guardians. The lord refused. If the 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 therewith the permission of the respondents or their predecessors in title	 specially 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. In the result	 the appeal is liable to be dismissed with only the following modification in the Appellate Court 's Order: (1) 422 For the following words: "that the respondents 1 and 2 do remove within one year from today all unauthorised huts	 sheds	 stables and other temporary structures standing and lying on the petitioners ' said forty one final plots" the following should be substituted : "that the respondents 1 and 2 do remove within one year from today all such huts	 sheds	 stables and other temporary structures standing or lying on the petitioners ' said forty one final plots as contravene the Scheme or in the erection or carrying out of which any provision of the Scheme has not been complied with. " Subject to this modification in the Order	 the appeal is dismissed with costs. Since a stay had been granted by this Court	 it would be necessary to allow reasonable time for compliance by the appellants. The periods already given by the trial Court	 as modified by the Appellate Court	 shall be counted from the date of this judgment. V.P.S. Appeal dismissed.

Summary:
In August 1958	 the State Government sanctioned a final town planning scheme The Bombay Town Planning Scheme	 Santa Cruz	 No. VI and directed that the scheme should come into force from 1st January 1959. As part of the scheme there was a Redistribution and Valuation Statement and to the Statement some Notes were appended. Note 11 provided 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. ' In pursuance of the scheme plots were allotted	 Ind the respondents became the owners of certain plots. Huts	 sheds and stables had been built on those plots by slum dwellers. 	 Since the appellant Corporation took no action for implementing the scheme	 the respondents	 from whom betterment charges were being recovered by the appellant	 called upon the appellant to implement it by removing the Slums	 etc.	 and to provide roads and drains as directed in the scheme. The appellant however	 remained inactive	 and the respondents filed a petition for the issue of a mandamus to the appellant and the High Court allowed the petition. In appeal to this Court	 on the questions : (1) Whether the appellant was bound in law to remove the structures out the private plots of the respondents in so far as they contravened the Town Planning Scheme	 and (2)whether a writ of mandamus could issue at the instance of the respondents when they had collected rents from the Occupants of the hut ments	 etc. HELD : (1) Under section 51(3) of the Town Planning Act	 1954	 the final scheme as sanctioned by the Government has the same effect as if it were enacted in the Act. The scheme and its regulations must	 therefore. be read as supplemental to the Act. 	 Under section 53	 all rights in the original plots of the private owners would determine	 and if	 in the scheme	 reconstituted or final plots are allotted to them	 they shall become subject to the rights settled by the Town Planning Officer in the final Scheme. The fact that the final plots coincided with the original plots of the) private owners would not make any difference. Under section 54 the local authority has to see whether any person is occupying any land in disregard of the rights determined under the scheme	 and if he does so	 he is to be summarily evicted by the local authority. Under section 55(1)(a) every building 	or work which is in contravention of the town planning scheme	 wherever it may be in the area under the scheme	 Could be removed	 Pulled down 	or altered by the local authority which alone is named as the authority for that purpose. [414 D E; 415 A B	 C D. H; 416 F F; 417 G] 409 In the present case	 note 11 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; and whosoever the owner or occupant may be	 he is required to remove it within one year from the date the final scheme came into force. Hence	 if the owner or occupant did not so remove 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 them down. The note takes note of the fact that the occupants of the hutments will be dishoused and makes provision for allotment of land to such dishoused persons. B C] Therefore	 it is the primary duty of the Corporation as the local authority to remove all offending huts	 etc.	 in the whole area under the scheme and not merely from those areas which are allotted to the Corporation. That the respondent could	 by having recourse to law	 eject the slum dwellers and remove their huts would not be a relevant consideration since the duty is imposed by the Act on the appellant. Further	 there is no provision in the Act which requires owners of the plots to	 take action against the hutment dwellers. [419 D E; 421 F G] The Maharashtra Regional and Town Planning Act. 1966	 which came in to force during the pendency of the petition in the High Court has provisions corresponding to the 1954 Act which are practically of the same content. Hence the position is the same under the 1966 Act also. [419 E F	 G H; 420 C D] (2) Since development and planning is primarily for the benefit of public	 the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. A mandamus may hence be	 issued to the appellant ordering that to be done which the statute requires to be done. [420 E F] In the present case	 the High Court exercised its discretion in directing the issue of the writ and this Court	 in appeal by special leave	 will not ordinarily question that discretion. The mere fact that the owners of the plots received some amounts from the hutment dwellers by way of compensation or rent would not import any disqualification for issuing a mandamus at their instance. [421 A	 F] Queen vs The Church Wardens of All Saints	 Wigan	 and Queen vs Garland	 	 referred to.