J.B. Pardiwala, J.By this application under Article 226 of the Constitution of India in the nature of a Public Interest Litigation, the petitioner, an Association of Farmers, namely, Vadodara Shaheri Jilla Khedut Mandal, residing and carrying on agricultural operations within the territorial limits of Vadodara Urban Development Authority (VUDA) seeks to challenge the constitutional validity of various Notifications issued by the Government of Gujarat, and the resolutions passed by VUDA in exercise of powers under the provisions of the Gujarat Town Planning & Urban Development Act, 1976.

Case of the Petitioner:

1.1 According to the petitioner, the State of Gujarat with an object to consolidate and amend the law relating to the preparation and execution of the development plan and Town Planning Schemes within the State enacted an Act No. 27 of 1976 known as The Gujarat Town Planning & Urban Development Act (for short The Town Planning Act). The Town Planning Act enjoins a duty upon the development authority to prepare a development plan under the Act and also to prepare and execute the Town Planning Schemes if so directed by the State Government.

1.2 The development plan prepared under the Town Planning Act is a Macro Planning, whereas the Town Planning Schemes are Micro Planning.

1.3 The Section 12 of the Town Planning Act provides for the reservation of land for various public purposes. Any land which is reserved for a public purpose u/s. 12 of the Town Planning Act cannot be developed by the owner or occupier of the land. Such land is necessarily required to be acquired by the authority for a public purpose within a period of 10 years as contemplated by Sec. 20 of the Town Planning Act.

1.4 The failure on the part of the Authority to acquire the land within the stipulated period of tenure from the date of coming into operation of the Development Plan would give a right to the holder of the land to issue a notice to the Authority to release the land from being acquired.

1.5 The Sections-40 to 76 of the Town Planning Act provides for framing and implementation of the Town Planning Schemes. Sec. 40 makes provision for reservation of the land for a public purpose. Similar provisions are made for the development plan.

1.6 According to the petitioner, upon sanctioning of the Draft Town Planning Scheme or Preliminary Town Planning Scheme by the Government, the land reserved for all public purposes would automatically vest with the concerned authority and the owner and occupier of such land continues to remain only as an occupier of the reconstituted plot allotted to him under the scheme.

1.7 The Section 12(M) of the Act, further provides for controlling and regulating the user and development of the land. Similar provisions are contained in Sec. 13(2)(c) of the Act empowering the authority to frame regulations for controlling the development of the land covered by the Development Plan.

1.8 It is the case of the petitioner that the Government of Gujarat issued a Notification dated 30/1/1978 appointing 1st February, 1978 as the date with effect from which the Town Planning Act shall come into force. The said notification was published in the Official Gazette on 23/2/1978.

1.9 The Section 22 of the Town Planning Act confers power upon the State Government to constitute the Urban Development Authority for a particular area in certain circumstances. Section 22(2) of the Town Planning Act provides for issuance of Notifications prescribing the limits of the area of urban development.

1.10 The Section 23 provides for power and functions of the Urban Development Authority. Sec. 23(2) of the Town Planning Act provides for the delegation of powers by the Urban Development Authority to any local authority or authorities functioning within the geographical area of the development authority.

1.11 The Government of Gujarat, vide Notification dated 30/1/1978 and published in the Official Gazette on 23/2/1978 constituted the Vadodara Urban Development Authority (VUDA). By order dated 1/2/1978 the Government of Gujarat directed the Urban Development Authorities to delegate certain functions and powers of the Urban Development Authority to the Local Authorities and in pursuance thereof, the Chief Executive Officer of the VUDA by order dated 28/3/1978 delegated certain powers and functions of VUDA to the Vadodara Municipal Corporation.

1.12 The State Government, thereafter, vide order dated 16/9/1983 directed the Urban Development Authorities to delegate all its functions and powers to the local authorities functioning within their jurisdiction.

1.13 in pursuance of the above referred order, the VUDA delegated all its functions and powers under the Town Planning Act to the Vadodara Municipal Corporation (VMC) vide resolution dated 28/10/1983.

1.14 According to the petitioner the VMC passed an order dated 4/12/2012 directing the developer to reserve 40% of the land in the development area for the public purpose in each plot of the land while seeking development permission in the development plan area.

1.15 it is the case of the petitioner that thereafter VUDA, in collusion with the VMC passed a resolution bearing No. 217 dated 30/1/2013 for the amendment in the General Development Control Regulations (GDCR) compelling the developer to reserve 40% of land in each plot before seeking the development permission in the Development Plan area.

1.16 According to the petitioner, in pursuance of the above referred resolution the Government of Gujarat issued a notification dated 21/3/2013 proposing to carry out the amendment in the GDCR framed by the VUDA.

1.17 it is the case of the petitioner that the Resolution dated 28/3/1978 and the Notification dated 21/3/2013 are absolutely illegal and unconstitutional. However, the VUDA and the VMC are determined to deduct 40% of the land from each plot in the area within their jurisdiction in the development area.

1.18 it is the case of the petitioner that the VMC has resolved to frame 26 Town Planning Schemes and further resolved to declare the intention u/s 41 of the Town Planning Act to frame such Town Planning Schemes.

1.19 it is also the case of the petitioner that the VMC has further authorized the Municipal Commissioner of the Corporation to carry out all its functions and duties as provided from Sections 41 to 48 of the Town Planning Act

1.20 in furtherance of such resolutions passed by the VMC, the Municipal Commissioner of the VMC has issued a public notice in different local Gujarati newspapers of Vadodara declaring its intention to frame in all 26 Town Planning Schemes covering the entire remaining area within the limits of the VMC.

2. Being aggrieved and dissatisfied with such action on the part of the VMC and the VUDA the petitioner has prayed for the following reliefs.

12. (A) That Your Lordships will be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, or order quashing and setting aside -

(i) the impugned Notification Annexure-B published in official gazette on 23-2-1978 whereby VUDA is constituted;

(ii) the impugned order Annexure-D dated 16-9-83 and resolution Annexure-E dated 28-10-1983 by which VUDA has delegated its all powers and functions under TP Act to VMC to frame and implement TP schemes;

(iii) the impugned two resolutions Annexure-J dated 13-3-2013 passed by VMC declaring intention u/s 41 of TP Act to frame 26 TP schemes;

(iv) the impugned public notice Annexure-K published in local daily newspapers;

And, further be pleased to hold and declare that VUDA is not legally constituted authority under the TP Act and be pleased to hold that VUDA has illegally and unauthorizedly delegated its powers and functions to VMC in respect of framing of TP schemes.

(B) Such other and further relief that is just, fit and expedient in the facts and circumstances of the case may be granted.

3. Stance of the Respondent No. 1 VMC:

3.1 The respondent No. 1 VMC has opposed this petition by filing a detailed affidavit-in-reply duly sworn by its Dy Municipal Commissioner.

3.2 According to the respondent No. 1 the Development Plan for the Vadodara Urban Development area has been sanctioned on 18/1/2012 by the State Government under the provisions of the Gujarat Town Planning Act. After the development plan is sanctioned, the VUDA/VMC is required to frame the schemes at the instance of the Municipal Corporation and proceed to resolve the declaration of the intention.

3.3 According to the respondent No. 1, the Municipal Commissioner has been authorized by the VUDA to undertake the exercise of framing of the Town Planning Schemes as required under the provisions of the Town Planning Act.

3.4 According to the respondent No. 1, Vadodara is the third largest city of Gujarat having population of about 18 lacs according to the Census of the year 2011.

3.5 It is the stance of the respondent No. 1 that in respect of the newly added area there are 26 schemes which are being proposed by the Municipal Corporation under the authority delegated to it. All such 26 schemes are at the stage of declaration of intention and publication of the Draft Scheme as required u/s 41(1) of the Act.

3.6 According to the respondent No. 1 the area of the land in which the petitioner has sought for the development permission admeasures more than 5000 sq. mtrs. As the development plan has already been sanctioned, the Municipal Commissioner has undertaken the exercise for framing of the Town Planning Scheme within the newly added area. The areas have been surveyed as required under the provisions of the Town Planning Act and a tentative plan has been submitted for consideration to the State Government and the VUDA.

3.7 According to the respondent No. 1 the following considerations weighed with the Municipal Commissioner while sanctioning the deduction of 40% of the land of the total area occupied by the petitioner for which the development permission has been prayed for.

(i) With the experience gained, it is found that there are several plots which have been constructed by the developers and the builders. They are also allotted and occupied by several families. I say that for want of proper infrastructure like sanitation, drainage and supply of drinking water, the residents at present are facing difficulties. Even there is no provision for roads.

(ii) After the lands area developed, it is very difficult for any authority to persuade the residents or builders for parting with the lands required for making provisions for roads, gardens, drainage and other facilities including fire brigade.

(iii) The development plan is sanctioned and any development of the area has to be consistent with the development plan.

(iv) The lands belonging to the petitioner for which development permission is sought for are designated for residential use. If it is a residential zone, it is obligatory on the part of the local authorities to provide for primary schools, medical dispensaries, housing needs for economically weaker section, open space for play ground and garden to maintain health, hygiene and green space in the area, neighbourhood plots for local business and residential activities and other facilities like fire brigade etc.

(v) It is in order to achieve such objection, the Municipal Commissioner is obliged to provide for 40% deduction while granting building permission. It is the duty of the local authorities to ensure plan growth with wide road network, sufficient space for schools, anganwadi centers, hospitals, fire safety etc.

3.8 According to the respondent No. 1 it is the duty of the Municipal Commissioner under the provisions of the Bombay Provincial Municipal Corporations Act (for short "the BPMC Act") to consider improving the basic amenities for the public at large like prescribing a street, widening and modifying a street, fresh line of a street, altering of a public street and such other improvements under the provisions of Sec. 205 of the BPMC Act read with Rule 7 of Chapter-XII of the Rules.

3.9 It is also the stance of the respondent No. 1 that u/s. 26 of the Town Planning Act, the development has to be consistent with the development plan for which the scheme is to be framed. In order to achieve such objective of the development plan, it is the duty of the Municipal Commissioner to consider the future requirements of the residents of the area for which the petitioner has submitted application for the commencement of the construction.

3.10 According to the respondent No. 1 with a view to providing a better future comprehensive planning for the said areas, the Municipal Corporation is justified in insisting that each of the land owner should leave 40% of their land white seeking development permission.

3.11 it is also the case of the respondent No. 1 that the Municipal Commissioner has drawn the attention of the State Government for a tentative planning of the new area amalgamated with the Corporation.

3.12 According to the respondent No. 1, the Corporation has a right to have one or more T.P. Schemes for the developed area or any part thereof and accordingly, the Municipal Commissioner in consultation with the Town Planning Committee of the VMC requested for the proposed 26 Town Planning Schemes and pursuant to such a request the Town Planning Committee sanctioned the request of the Municipal Commissioner for introducing the proposed 26 Town Planning Schemes.

3.13 it is the stance of the respondent No. 1 that after the Town Planning committee sanctioned the Commissioners request, the same had been put before the General Board of the VMC and the General Board passed a resolution with respect to the proposed 26 Town Planning Schemes.

3.14 in view of such a sanction granted by the Town Planning Committee and approval of the same by the General Body of the VMC, the Municipal Commissioner forwarded the 26 proposed Town Planning Schemes published in the Government Gazette to the State Government.

3.15 According to the respondent No. 1, all the formalities in terms of Sec. 41 of the Act have been observed and followed by the Municipal Commissioner. The Corporation has already started with the preparation of the T.P. Schemes as contemplated u/s. 42 of the Act and the same is under progress. In view of such development and declaration of the intention by the Corporation, the petition does not deserve to be entertained.

3.16 it is also the case of the respondent No. 1 that in view of the provisions of the Town Planning Act, once the intention is being declared to make 26 T.P. Schemes then a restriction is imposed on use and development of the land after such declaration of the schemes. As the intention to develop 26 T.P. Schemes is already declared, the Corporation has a right to restrict the petitioner from using and developing the land in question and to deduct 40% of the land from the total area. It is also the case of the respondent No. 1 that the work for the introduction of such T.P. Schemes in the areas covered under 26 T.P. Schemes referred to above was initiated way back in the year 2006 and by now there has been a substantial progress in the development and sanctioning of such schemes.

3.17 it is also the case of the respondent No. 1 that even in the area which is not included in the Town Planning Scheme, the VMC has requested the VUDA for variation in the GDCR of the Development of VUDA. Accordingly the Corporation has requested the VUDA which is in the public interest and the Government of Gujarat has also sanctioned the same. A Notification has also been issued by the State Government dated 2/3/2013 and the Competent Authority will now hear the objections and suggestions which may be made by the petitioner in view of the Notification issued by the State Government.

3.18 According to the respondent No. 1 the petition is premature and deserves to be rejected on such ground alone since, even in the non-T.P. area, the petitioner has a right to file objections and its suggestion before the concerned competent authority.

4. Stance of the Respondent No. 2 -State Government:--

4.1 According to the State Government, there is no merit in the principal contention raised by the petitioner that the Town Planning Act came into operation with publication in the Official Gazette on 23/2/1978 and therefore, the Act could not have come into operation from 1/2/1978. It has been explained by the State Government in this regard that the Notification dated 30/1/1978 was published twice. It was published on the very same date under the extraordinary gazette and subsequently under the ordinary gazette. In such circumstances it cannot be said that the Town Planning Act was not in operation when the impugned Notification was issued.

4.2 According to the State Government, the petition deserves to be rejected also on the ground that the validity of the Constitution of the VUDA is challenged after a lapse of almost 35 years. According to the State Government what is important is the purpose for which the VUDA was constituted and such purpose is for proper development or re-development of any Urban area according to the provisions of Sec. 22 of the Town Planning Act.

4.3 It is the stance of the State Government that the powers and functions of the Urban Development Authority are conferred u/s. 23 of the Town Planning Act. Such powers are issued upon the Urban Development Authority for an effective planned development and control, keeping in view the interest of the public at large.

4.4 it is the stance of the State Government that by such a Public Interest Litigation, if the validity of VUDA is entertained and that too at such a belated stage, it would hamper the entire development process affecting the public at large. It is also the stance of the State Government that vide different Notifications issued on 30/1/1978, 82 Urban Development Authorities u/s 6, 2 Urban Development Authorities u/s 5 and 3 Urban Development Authorities other than the VUDA were declared u/s 22 of the Town Planning Act by the State Government. If in the present case for any reason if it is declared that VUDA was not duly constituted according to the provisions of the Act, then on such a technical plea, it would have a disastrous effect upon those 88 authorities which have come into existence on the same date and in similar conditions.

4.5 According to the State Government, there is no substance even in the challenge of the petitioner to the order dated 16/9/1983 passed by the Urban Development and Urban Housing Department, of the State Government. According to the State Government vide order dated 16/9/1983 instructions were given upon the authorities to delegate the powers under Sections 23(1)(ii), 23(6), 68, 69, 72 and 88 of the Act.

4.6 According to the State Government, the functions of the Urban Development Authority is primarily to provide amenities and infrastructure to the public at large and development planning under the Town Planning Act. If the petitions of the present nature are entertained after an inordinate delay challenging the validity of the Constitution of the authorities,, it would be detrimental to the interest of the public at large.

5. Submissions on behalf of the Petitioner:--

5.1 Mr. M.C. Bhatt, the learned counsel appearing for the petitioner, submitted that in view of the provisions of Sec. 1(3) of the Town Planning Act, the Act shall come into force with effect from such date as the State Government may by Notification appoint. According to Mr. Bhatt, in view of Sec. 1(3) of the Town Planning Act, the Act does not come into force on the date on which the Act is enacted, but the condition precedent for the Act to be brought into force is the issuance of the Notification by the State Government. Mr. Bhatt submitted that Sec. 2(xv) of the Act defines the term Notification which means the Notification published in the Official Gazette. Mr. Bhatt invited our attention to the fact that the Government of Gujarat issued Notification dated 30/1/1978 appointing 1st February, 1978 as the date with effect from which the Town Planning Act should come into force. Mr. Bhatts main plank of submission is that the Town Planning Act cannot be deemed to have come into operation earlier than 23/2/1978 and the powers under the Act could not have been exercised by the Government of Gujarat before 23/2/1978.

5.2 According to Mr. Bhatt, the VUDA has been constituted by the Notification dated 30/1/1978 published in the Official Gazette dated 23/2/1978. The Government of Gujarat had exercised powers u/s. 22 of the Town Planning Act to constitute the VUDA by Notification dated 30/1/1978 published in the Official Gazette dated 23/2/1978. Thus, according to Mr. Bhatt, the Government had no authority, power or jurisdiction to exercise powers u/s. 22 of the Town Planning Act on 30/1/1978 when the impugned notification was signed by the Authority.

5.3 Mr. Bhatt submitted that the Notification constituting the VUDA was signed by the Officers of the State Government on 30/1/1978. The condition precedent for exercising powers u/s. 22 of the Town Planning Act is that the Town Planning Act must be in operation. According to Mr. Bhatt on 30/1/1978 the Town Planning Act was not in operation and, therefore, the Government of Gujarat could not have issued the Notification dated 30/1/1978 constituting the VUDA.

5.4 Mr. Bhatt further submitted that Sec. 23(2) of the Town Planning Act provides for delegation of power by the Urban Development Authority to the Local Authority, meaning thereby, by the VUDA to the VMC. The procedure for delegation of the power by the Urban Development Authority to the Local Authority provided by Sec. 23(2) of the Act is that the proposal must originate from the Urban Development Authority and such proposal is required to be approved by the Government. On approval being granted, the process of delegation could be completed. Mr. Bhatt would submit that in the instant case the VUDA in its discretion never contemplated any delegation of power to the VMC but the powers are delegated from time to time by the VUDA to VMC in pursuance of the mandate issued by the Government of Gujarat in exercise of powers u/s 122 of the Town Planning Act.

5.5 According to Mr. Bhatt Sec. 22 of the Town Planning Act confers authority on the Government to issue directions required to be carried-out for the efficient administration of the Town Planning Act. Such powers are supervisory and conferred with a view to see and achieve the efficient implementation of the Town Planning Act by the appropriate authority, however, according to Mr. Bhatt in the instant case, the directions issued by the VUDA are not to implement the Act at all and instead conferred the powers to some other alien authority. Mr. Bhatt would submit that Sec. 122 of the Town Planning Act cannot be pressed into service to prevent the Development Authority from exercising its powers under the Act and instead delegate such powers to some other alien authorities.

5.6 It is submitted by Mr. Bhatt that in view of the provisions contained in Sec. 123 and 122 of the Town Planning Act, the directions issued by the Government of Gujarat vide order dated 16/9/1983 and the Resolution dated 28/10/1983 are beyond the scope of powers and, therefore, deserves to be struck down as illegal and unconstitutional.

5.7 Mr. Bhatt would also submit that the impugned action to initiate framing of 26 Town Planning Schemes is mala fide since the VMC and the VUDA together in order to achieve their illegal object, are determined to deduct 40% of the land of the developed area.

5.8 In such circumstances referred to above, Mr. Bhatt prays that there being merit in this public interest litigation, the same deserves consideration and the reliefs prayed for also deserve to be granted.

6. SUBMISSIONS ON BEHALF OF THE RESPONDENT No. 1:--

6.1 Mr. S.N. Shelat, the learned Senior Advocate appearing on behalf of the Corporation submitted that there is no element or any trace of public interest and the petition has been filed by the members of the Mandal only for their private gain and interest. Such being the position, Mr. Shelat would submit that the petitioner deserves to be rejected on this ground alone.

6.2 Mr. Shelat further submitted that once the declaration of intention to frame a Town Planning Scheme is declared then there is a restriction imposed by the provisions of the Act on use and development of the land falling within the area. Since the intention to frame 26 town planning schemes has already been declared the Corporation has a right to restrict the members of the petitioner from using and developing the land in question to the extent of 40% of the total land.

6.3 Mr. Shelat submitted that the decision to deduct 40% of the land while granting development permission is in public interest as the same will take care of the basic public amenities like road, drainage, parking space etc. Mr. Shelat also submitted that the Corporation has undertaken a comprehensive planning for the extended area of the Corporation with a view to meet with the requirements of the residents of the said area. The Corporation has entrusted the work of survey of those areas to the private agency at the cost of nearly Rs. 1 Crore so that the Corporation is able to undertake the framing of the scheme for the residents as expeditiously as possible. According to Mr. Shelat, the site work survey has been made by the Corporation through the said agency. Having surveyed the lands, the Town Planning Committee considered the advisability of having 26 schemes in public interest and the development plan was accordingly sanctioned on 18th January 2012.

6.4 Mr. Shelat further submitted that after consultation with the Town Planning Committee the Municipal Commissioner proposed to the Board that he be authorized to undertake and comply with the provisions of Sections 41 to 48 of the Act, 1976.

6.5 Mr. Shelat submitted that no legislative power is entrusted to the Municipal Commissioner nor any judicial power is entrusted to the Municipal Commissioner. The exercise undertaken by the Municipal Commissioner is entirely executive and administrative in nature for which no fault could be found.

6.6 Mr. Shelat submitted that the Chief Town Planning Officer has already sanctioned and given his consent for ten schemes as he has approved the maps prepared by the Municipal Corporation. So far as other 16 Town Planning Schemes are concerned, the consultation between the Chief Planning Officer and the Municipal Corporation has been completed and the Chief Town Planning Officer has approved the same by signing maps prepared for 16 schemes. Mr. Shelat submitted that all that the Chief Town Planner has suggested to the Corporation is that the conditions laid down by him shall be complied with before the schemes are submitted for the approval of the Government.

6.7 Mr. Shelat also submitted that the Corporation has requested the DILR for reviewing the measurement of boundaries of the Town Planning Schemes as is required to be done by the Chief Town Planner.

6.8 Mr. Shelat lastly submitted that the petition is premature and no cause of action could be stated to have arisen for filing such a petition. According to Mr. Shelat, as per Section 65, Clause (1), Sub-clause (a), the Government, in respect of the preliminary scheme, will take action within a period of two months from the date of its receipt either for sanctioning the same or refusing to sanction or for making such modification, as in its opinion, necessary. Section 65, Clause (2) visualizes sanctioning the preliminary scheme or the final scheme. Considering the provisions of Section 65, a preliminary scheme subsequent to the period mentioned in the notification becomes a part of the Act itself. The petitioner herein has sufficient time to question such sanctioning of the preliminary scheme before it becomes a part of the enactment.

7. SUBMISSIONS ON BEHALF OF THE VUDA:--

7.1 Mr. M.D. Pandya, the learned senior counsel appearing on behalf of the VUDA by relying on the provisions of Section 122 of the Act submitted that the appropriate authority is duty bound to carry out such directions or instructions which are issued by the State Government from time to time for the efficient administration of the Act. Mr. Pandya by inviting our attention to Section 122, Clause (2) of the Act submitted that if in connection with the exercise of its powers and discharge of its provisions a dispute arises between the authority and the State Government, the decision of the State Government on such dispute is considered to be final.

7.2 Mr. Pandya also submitted that there is no public interest involved in this petition and on the contrary, the decision which has been taken by the authority to deduct 40% of the land at the time of granting development permission is actually in public interest.

7.3 Mr. Pandya lastly submitted that the petition is premature as the petitioner will have a chance to lodge their objections if they are aggrieved in any manner by such decision which has been the subject matter of challenge in the present petition.

-:ANALYSIS:--

8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this petition is whether the petitioner has been able to make out any case for grant of any of the reliefs prayed for in this petition.

9. Ordinarily, the Court would allow a litigation in public interest if it is found:

(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;

(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;

(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

(iv) That the process of public interest litigation was not being abused by politicians or other busybodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

(v) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;

(vi) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

(vii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;

(viii) That the person approaching the Court has come with clean hands, clean heart and clean objectives;

(ix) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busybody or persons or groups with a mala fide objective of either for vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest.

10. Before adverting to the rival submissions on merits, it is necessary for us to consider the objects and reasons of the Act, 1976.

11. The Act, 1976 was enacted to consolidate and amend the law relating to the making and execution of the development plans and town planning schemes in the State of Gujarat. The Act has been enacted to ensure that the Town Planning Schemes are made in a proper manner and their execution is made effective and for that a local authority is empowered to prepare a development scheme for the entire area or a part within its jurisdiction. On account of urbanization, there has been a heavy influx of people to the cities. With the advent of social and industrial progress in India couple with the abnormal growth of population, the necessity of a special legislation for making better provisions for development plan, town planning schemes and creation of new towns, has fortified the fitness of enacting Act of 1976. To ensure the implementation of plans and schemes under this Act, provision for compulsory acquisition of land, required for public purposes in respect of plans and schemes, was the indispensable and inexorable task ventured by the State Government. The Act has imposed limits on the liberties of the citizens and those arise out of the liberties of other citizens or on account of public good or in the public interest. For the proper framing of the schemes and implementing them, the individual rights are made subordinate to the wider social interest of the society and civic amenities.

12. In the aforesaid context, we may quote with profit a decision of the Supreme Court in the case of State of Gujarat Vs. Shantilal Mangaldas and Others, The Supreme Court was dealing with the Bombay Town Planning Act, 1955 which was prevailing at the relevant point of time. The observations made by the Supreme Court in paragraphs 8, 9, 11 and 20 are as under:

8. The principal objects of the town planning legislation are to provide for planned an controlled development and use of land in urban areas. Introduction of the factory system into methods of manufacture, brought about a great exodus of population from the villages into the manufacturing centers leading to congestion and overcrowding, and cheap and insanitary dwellings were hurriedly erected often in the vicinity of the factories. Erection of these dwellings was generally subject to little supervision or control by local authorities, and the new dwellings were built in close and unregulated proximity with little or no regard to the requirements of ventilation and sanitation. Necessity to make a planned development of these new colonies for housing the influx of population in sanitary surroundings was soon felt The Bombay Legislature enacted Act 1 of 1915 with a view to remedy the situation.

9. The Bombay Town Planning Act 27 of 1955 is modeled on the same pattern as Act 1 of 1915, but with one important variation. By Chapter II of the new Act it is made obligatory upon every local authority to carry out a survey of the area within its jurisdiction and to prepare and publish in the prescribed manner a development plan and submit it to the Government for sanction. A development plan is intended to lay down in advance the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are to be carried out and regulated, with particular reference to-

(a) proposals for designating the use of the land, for the purposes such as (1) residential, (2) industrial, (3) commercial, and (4) agricultural;

(b) proposals for designation of land for public purposes such as parks, playgrounds, recreation grounds, open spaces, schools, markets or medical, public health or physical culture institutions;

(c) proposals for roads and highways;

(d) proposals for the reservation of land for the purpose of the Union, any State, any local authority or any other authority established by law in India; and

(e) such other proposals for public or other purposes as may from time to time be approved by a local authority or directed by the State Government in that behalf

By making it obligatory upon a local authority to prepare a development plan under Bombay Act 27 of 1955 it was clearly intended that the Town Planning Schemes should form part of a single cohesive pattern for development of the entire area over which the local authority had jurisdiction.

11. Under the Bombay Act 27 of 1955 after a development plan is sanctioned, the local authority makes a declaration of its intention to make a scheme and then prepares a draft scheme setting out the size and shape of every reconstituted plot; so far as may be, to render it suitable for building purposes and where the plot is already built upon, to ensure that the building as far as possible complies with the provisions of the scheme as regards open space. The scheme may also make provision for lay out of lands; filling up or reclamation of lands; lay out of new streets, roads, construction, diversion, extension, alteration, improvement and stopping up of streets, roads and communications; construction, alteration and removal of buildings, bridges and other structures; allotment or reservation of lands for roads, open spaces, gardens, recreation grounds, schools, markets, green belts, dairies, transport facilities, and public purposes of all kinds; drainage, lighting; water-supply; preservation of objects of historical or national interest or beauty and of buildings used for religious purposes; imposition of conditions relating to constructions and other matters not inconsistent with the object of the Act as may be prescribed. The draft scheme is published after it receives the sanction of the State Government. The State Government then appoints Town Planning Officer to perform the duties specified in Section 32 of the Act An appeal lies to a Board of Appeal against certain decisions which the Town Planning Officer may make. After the Town Planning Officer has dealt with the various matters relating to the draft scheme, and the appeals against his orders have been disposed of, the State Government may sanction the scheme, and on and after the date fixed in the notification sanctioning the Town Planning Scheme has effect as if it were enacted in the Act.

20. Counsel urges that the object of the Town Planning Act in pith and substance is to facilitate planned development, to ensure healthy surroundings to the people living in congested localities and to provide them with sanitation and other urban facilities conducive to healthy living and on that account is an Act falling within Entry 6 of List II of the Seventh Schedule - "Public health and sanitation", and Entry 20 of List III -"Economic and social planning". But the competence of the Legislature to enact legislation on the subject-matter of the Act and for the object intended to be served thereby are irrelevant in determining whether any fundamental right of a person is infringed by the impugned Act. The doctrine of pith and substance is applicable in determining whether a statute is within the competence of the legislative body especially in a federal set up, where there is division of legislative powers: it is wholly irrelevant in determining whether the statute infringes any fundamental right.

13. In Vasantlal Maganbhai Sanjanwala Vs. The State of Bombay and Others, the Supreme Court observed that in most of the towns and cities, there is no room for extension of public amenities like hospitals, schools, colleges and laboratories or parks. In order that the suburbs and the surroundings of the towns and cities be developed properly and not allowed to grow haphazard, the legislature of Bombay felt that town should be allowed to grow only on planned schemes formulated on the basis of a development plan and it is this development which is required to be prepared by the rule making authority and which is to be sanctioned by the Government after inviting objections and considering the same.

14. Thus, taking into consideration the object with which the legislature thought fit to enact the Act of 1976 makes it very clear that for the appropriate framing of schemes and implementing them, the individual rights are made subordinate to the wider social interests of the society and civic amenities. The individual interests are not allowed to outweigh and prevail over the wider social interests so as to thwart or frustrate the salutary social schemes of the town planning for the benefit of the public as a whole. The Bombay Town Planning Act, 1954 was enacted to consolidate and amend the law for the making and execution of town planning schemes enjoining a duty on every local authority to prepare a development plan for the entire area within its jurisdiction. This Act of 1954 was repealed with the saving provision in Section 124 thereof. It was felt that if the planning activities were undertaken on a more rational and scientific basis with reference to development of areas which are not necessarily restricted to the areas within the jurisdiction of the local authorities, it will be possible to create better environmental conditions. Therefore, the Act of 1954 was replaced by a more comprehensive legislation.

15. In our opinion, the decision of the authorities in the present case to deduct 40% of the area of a particular land while granting development permission and the schemes framed thereunder should not be allowed to suffer and the interest of the members of the petitioner association have to be subordinated so as to sub-serve the public good as they are to be expeditiously implemented in accordance with the true legislative intention of the Act. An elaborate procedure is prescribed under the Act and the Rules to achieve the desired objective.

16. We are far more convinced by the fact that the decision of the authorities to deduct upto 40% of the land of the owner while framing a town planning scheme u/s 41 is in the larger public interest rather than the public interest of a handful of owners of the land likely to be affected by such deduction is concerned. The only question that needs to be examined is whether there is any legal impediment coming in the way of the authorities in implementing such a decision.

17. We would first like to consider the vociferous submission canvassed on behalf of the respondents so far as the petition being termed as premature is concerned.

18. We have already adverted to the facts of the case but it will be more expedient for a better adjudication to narrate the chronology of events which have taken place over a period of years in brief.

1. A notification dated 30th January 1978 was issued u/s 1, Sub-section (3) of the Gujarat Town Planning Act appointing 1st February 1978 as the date from which the Town Planning Act shall come into force.

2. On the same date, i.e. on 30th January 1978, the Area Development Authority was constituted under the provisions of Section 6, Clause-1 and Section 3, Clause (1) and (2) of the Act.

3. On 30.1.1978 the Government of Gujarat constituted the Vadodara Urban Development Authority in exercise of powers u/s 22, Clause 1, Sub-clause (2) and (4) of the Act.

4. On 1.2.1978 the State Government passed an order u/s 122 of the Act to delegate its functions under the provisions of Sections 7 and 23 of the Act to the Vadodara Municipal Corporation.

5. On 20.3.1978 the State Government issued an order in exercise of powers u/s 121 of the Act delegating the functions as indicated in the said order.

6. On 20.10.1983, the Vadodara Urban Development Authority entrusted all its functions and powers to the Vadodara Municipal Corporation for preparing a town planning scheme and to make changes thereto in exercise of powers u/s 23, Clause-1, Sub-clause (ii), 23-1, 68, 69, 70, 72 and 88 of the Act.

7. On 18.1.2012, the State Government sanctioned the development plan. Immediately thereafter, the Vadodara Municipal Corporation entrusted the work of survey to a private agency for the entire area.

8. On 7.12.2012, the Municipal Commissioner addressed a letter to the Chief Town Planner, State of Gujarat, in compliance with the provisions of Section 4, Clause 1 of the Act along with maps showing boundaries of the proposed schemes and also indicating the use of the

9. On 2.1.2012, the Chief Town Planner addressed a letter to the Municipal Commissioner approving the maps in respect of ten schemes out of 26 schemes on certain terms and conditions to be complied with at the time of submitting the draft town planning scheme.

10. On 2.1.2013, the Chief Town Planner addressed a letter to the Municipal Commissioner inter alia stating that out of 20 schemes 10 schemes which were indicated in the communication required reconsideration.

11. On 9.1.2013, a letter was addressed by the Municipal Commissioner pursuant to the resolution passed by the Town Planning Committee to the Secretary General Board for consideration of the General Board of Vadodara Municipal Corporation requesting for entrustment of powers in favour of the Municipal Commissioner.

12. On 22.1.2013, the Municipal Commissioner addressed a letter to the Chief Town Planner providing him with the copy of the resolution passed by the Town Planning Committee as well as the maps in three sets showing the boundaries.

13. On 26.2.2013, a communication was received by the Corporation from the Chief Town Planner, State of Gujarat, granting approval to 16 proposed town planning schemes subject to the terms and conditions mentioned in the letter.

14. On 13.3.2013, the Municipal Corporation resolved that the Municipal Commissioner be entrusted to undertake the procedure under Sections 41 to 48 of the Act. It was further resolved that there can be deduction upto 40% of the land while framing the town planning scheme u/s 41 of the Act.

15. On 22.3.2013, the declaration of intention to make a scheme was published in the Government Gazette notification inviting suggestions and objections from the public.

16. On 24.3.2013, a declaration of intention was published in the daily newspaper of Vadodara.

17. On 14th May 2013, the Municipal Commissioner deposited the amount towards the fees with District Land Record office to undertake the work of survey of the area and for examining the work of survey undertaken by the private agencies in respect of the proposed town planning schemes.

18. On 26th July 2013, the Town Planner confirmed the compliance of the consultation u/s 41, Clause-1 subject to the conditions indicated in the letter dated 16h May 2013.

19. On 26th July 2013, the Chief Town Planner confirmed the compliance u/s 41, Clause-1 and approved the maps subject to the compliance of the conditions of the letter dated 26th February 2013 and 16th May 2013.

19. Thus, from the above it is clear that the authorities have reached upto the stage of Section 41 of the Act by which it has declared its intention to frame a town planning scheme. Section 41 reads as under:

Section 41. Power of appropriate authority to resolve on declaration of intention to make scheme.

(1) Before making any town planning scheme under the provisions of this Act in respect of any area, the appropriate authority in consultation with the Chief Town Planner may by resolution, declare its intention to make such a scheme in respect of such area.

(2) Within twenty-one days from the date of such declaration (hereinafter referred to as the declaration of intention to make a scheme), the appropriate authority shall publish it in the prescribed manner and shall dispatch a copy thereof along with a plan showing the area which it proposes to include in town planning scheme to the State Government.

(3) A copy of the plan dispatched to the State Government under sub-section (2) shall be open to the inspection of the public during office hours at the office of the appropriate authority.

20. Section 41 should be read along with the Rule 16 of the Gujarat Town Planning and Urban Development Rules, 1979 (for short, "the Rules 1979").

16. Publication of declaration u/s 41.--

(1) The declaration under sub-section (1) of section 41 shall be published in the Official Gazette and shall also published by means of an advertisement in one or more Gujarat newspapers circulating within the jurisdiction of the appropriate authority. The appropriate authority shall cause copies of such advertisement to be posted in the prominent places in or near the area included in the scheme and at the head office of the appropriate authority.

(2) Every advertisement published under sub-rule (1) shall contain the resolution of the appropriate authority in respect of the declaration u/s 41 and shall announce that a copy of the plant of the area proposed to be included in the town planning scheme and the surrounding land is kept open for inspection of the public at the head office of the appropriate authority during office hours.

21. Therefore, the second step in the process now will be compliance of Rule 17 of the Rules which provides for meeting of owners and framing of the tentative proposals. Rule 17 reads as under:

17. Meeting of owners and framing of tentative proposals.--For the purpose of making the draft scheme u/s 42 the appropriate authority shall call a meeting or meetings of the owners of the lands included in a town planning scheme by a public notice as well as by individual notice to every owner whose address is known to the appropriate authority and explain in such meeting the tentative proposals of the draft scheme for eliciting public opinion and suggestions on the said proposals. The appropriate authority may take into consideration all such suggestions as made and objections raised on the proposals for making the draft scheme u/s 42.

22. The third step in the process will be making and publication of the draft scheme u/s 42 of the Act. Section 42 reads as under:

Sec. 42. Making and publication of draft scheme.

(1) Within [nine] months from the date of the declaration of intention to make a scheme u/s 41, the appropriate authority shall make a draft scheme of the area in respect of which the said declaration has been made and publish the same in the Official Gazette, along with the draft regulations for carrying out the provisions of the scheme:

Provided that on application by the appropriate authority in that behalf, the State Government may, from time to time, by notification, extend the aforesaid period by such period or periods, as may be specified, therein so however, that the period or periods so extended shall not in any case exceed [three] months in the aggregate.

(2) If the draft scheme is not made and published by the appropriate authority within the period specified in sub-section (1) or within the period extended under the proviso to that sub-section, an officer appointed by the State Government may make and publish in the Official Gazette, a draft scheme for the area in respect of which the declaration of intention to make a scheme has been made within a period of nine months from the date of the expiry of the aforesaid period, or the extended period, as the case may be.

(3) If such publication is not made by the officer appointed under sub-section (2), the declaration of intention to make a scheme shall lapse and for a period of three years from the date of such declaration, it shall not be competent for the appropriate authority to declare its intention to make any town planning scheme for the said area or for any part thereof

23. Section 42 should be read along with the Rule 18, which provides for publication of the draft scheme u/s 42. Rule 18 reads as under:

18. Publication of draft scheme u/s 42.--(1) The draft scheme u/s 42 shall be published by means of an advertisement in the Official Gazette and shall also be published in one or more Gujarati newspapers circulating within the area of the appropriate authority. The appropriate authority shall also cause copies of such advertisement to be posted at the head office of the appropriate authority and at other prominent places in or near the area included in the draft scheme. The advertisement shall state a copy of the scheme is open for public inspection at the head office of the appropriate authority during office hours.

(2) Every advertisement published under sub-rule (1) shall announce that if within one month from the date of publication of the draft scheme in the Official Gazette any person affected by such scheme communicate in writing to the appropriate authority any objection relating to such scheme, the appropriate authority shall consider such objections before submitting the draft scheme to State Government u/s 48.

Provided that the appropriate authority may reduce the period of one month to fifteen days for inviting objections as provided in the proviso under Sec. 47 of the said Act in the circumstances of a severe natural calamities such as earthquake, flood, cyclone, fire or any other such calamity which has resulted in considerable and widespread destruction in the area included in the draft scheme.

24. It is necessary to state that under the Rule 18, the objections will be invited and the appropriate authority will consider such objections before submitting the draft scheme to the State Government u/s 48 of the Act.

25. The fourth step in the process will be sanctioning of the draft town planning scheme by the State Government u/s 48. Section 48 reads as under:

Section 48. Power of State government to sanction draft scheme.

(1) The appropriate authority shall, within [Four] months from the date of the publication of the draft scheme in the Official Gazette, submit the draft scheme with any modifications that may have been made therein u/s 47 together with the objections which may have been communicated to it, to the State Government for sanction.

(2) If the State Government sanctions such scheme, it shall in such may think fit, the State Government may, within [six] months from the date of its receipt, by notification, sanction such scheme with or without modifications or subject to such conditions as it may think fit to impose or refuse to sanction it.

(3) If the State Government sanctions such scheme, it shall in such notification state at what place and time the draft scheme shall be open for the inspection of the public.

26. The fifth step will be the appointment of a Town Planning Officer u/s 50 of the Act Section 50 reads as under:

Section 50. Appointment of Town Planning Officer.

(1) Within one month from the date on which the date on which the sanction of the State Government to a draft scheme is notified in the Official Gazette, the State government shall appoint a Town Planning Officer possessing such qualifications as may be prescribed, for the purpose of such scheme and provide him with such number of officers and staff as may be considered necessary and his duties shall be as hereinafter provided.

[Provided that the State Government may, on the request made by the Appropriate Authority, appoint a Town Planning Officer within one month from the date of the publication of Draft Scheme under sub-section (1) of Section 42]

(2) The State Government may, if it thinks fit, at any time, remove, on the ground of incompetence or misconduct or any other good and sufficient reason a Town Planning Officer appointed under this section and shall forthwith appoint another person in his place and any proceeding pending before Town Planning Officer immediately before the date of his removal shall be continued and disposed of by the new Town Planning Officer appointed in his place.

Provided that no Town Planning Officer shall be removed under this sub-section except after an inquiry in which he has been informed of the charges against him and a reasonable opportunity of being heard in respect of those charges has been given to him.

(3) Subject to the provisions of sub-section (2), a Town Planning Officer appointed under sub-section (1) for the purpose of any scheme shall cease to hold office with effect from the date on which the final scheme is sanctioned u/s 65.

27. The sixth step will be drawing of a preliminary scheme by the Town Planning Officer u/s 52, Clause (1) of the Act, which reads under:

Section 52 Contents of preliminary and final scheme.

(1) In a preliminary scheme, the Town Planning Officer shall,-

(i) after giving notice I the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots;

(ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons;

(iii) provide for the total or partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with provision of section 81.

(iv) determine the period within which the works provided in the scheme shall be completed by the appropriate authority.

28. Thereafter, the town planning officer will have to serve a notice in Form-H as provided under Rule 26, Clause (1) of the Rules. Rule 26 reads as under:

Rule 26. Procedure to be followed by Town Planning Officer u/s 51 and under sub-section (1) of section 52.-

(1) For the purpose of preparing the preliminary scheme and final scheme the Town Planning officer shall given notice in form H of the date on which he will commence his duties and shall state the in the time, as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a Town Planning Scheme shall be entitled u/s 82 to make a claim before him. Such notice shall be published under the Official Gazette and in one or more Gujarat newspapers circulating within the area of the appropriate authority and shall be pasted in prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer.

(2) The Town Planning Officer shall after the date fixed in the notice given under sub-rule (1), continue to carry on his duties as far possible on working days and during working hours.

(3) The Town Planning Officer shall, before proceeding to deal with the matters specified in section 52, publish a notice in Form H in the Official Gazette and in one or more Gujarat newspaper circulating within the area of the appropriate authority Such notice shall specify the matters which are proposed to be decided by the Town Planning Officer and State that all persons who are interested in the plots or are affected by any of the matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of [fifteen days in the cases provided in the proviso to sub-rule (2) of Rule 18 of the rules] from the publication of notice in the Official Gazette. Such notice shall also be posted at the office of the Town Planning Officer and of the appropriate authority and the substance of such notice shall be pasted at convenient places in the said locality.

(4) The Town Planning Officer shall give every person interested in any land affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations if any.

(5) If during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme, the Town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons therefore. All such minutes shall be appended to the scheme.

(6) The Town Planning Officer shall record and enter in the scheme every decision given by him. The calculations and estimates shall be set out and recorded in Form F, Form G and in other statements as may be prepared by the Town Planning Officer

(7) The scheme as drawn up by the Town Planning Officer shall include particulars specified in rule 21 read with section 52.

(8) The component parts of the scheme shall be so arranged that they may be readily referred to in connection with the map and plans.

(9) The Town Planning Officer shall publish the scheme drawn up by him by notification in the Official Gazette in Form I and also by means of an advertisement in one or more local newspaper announcing that the scheme shall be open for the inspection of the public during office hours at his office and communicate forthwith the decisions taken by him in respect of each plot to the owner or person interest by the issue of the requisite extract from the scheme in Form J and Form K as the case may be. The Town Planning Officer shall also inform the State Government about the publication of final scheme.

29. Thereafter, a public notice would be published in a newspaper as well as in the Official Gazette in terms of the Rule 26, Clause (3).

30. Under the Rule 26, Clause (4), the Town Planning Officer will give opportunity to the person interested in any land affected by any particular of the scheme.

31. The Town Planning Officer thereafter shall publish the scheme u/s 52, Clause (1), read with the Rule 26, Clause (9) of the Rules.

32. The seventh step in the process will be the submission of the preliminary scheme by the Town Planning Officer to the State Government u/s 64 of the Act.

Section 64. Submission of preliminary scheme and final scheme to Government;

The Town Planning Officer shall submit to the State Government for sanction the preliminary scheme also before the final scheme is submitted to the State Government under sub-section (2) of section 52, together with a copy of his decision u/s 53.

33. The last and the final step would be sanctioning of the scheme by the State Government u/s 65 of the Act.

Section 65. Power of Government to sanction or refuse to sanction the scheme and effect of sanction:

(1) On receipt of the preliminary scheme or, as the case may be, the final scheme, the State Government may-

(a) in case of a preliminary scheme, within a period of two months from the date of its receipt, and

(b) in the case of a final scheme, within a period of three months from the date of its receipt, by notification, sanction the preliminary scheme or the final scheme or result to give sanction, provided that in sanctioning any such scheme, the State Government may make such modifications as may, in its opinion, be necessary for the purpose of correcting an error, irregularly or informality.

(2) Where the State Government sanctions the preliminary scheme or the final scheme, it shall state in the notification-

(a) a place at which the scheme shall be kept open for inspection by public, and

(b) a date (xxxx) in which all the liabilities created by the scheme shall come into force:

(xxxx) Deleted by Guj. Act No. 11 of 2002, the words "(Which shall not be earlier than one month after the date of the publication of the notification)

Provided that the State Government may from time to time such date, by notification, by such period, not exceeding three months time, as it thinks fit.

(3) On and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act.

34. The purpose for giving a fair idea of the steps afore-noted which are yet to be undertaken is to show that at every stage an opportunity will be given to the persons likely to be affected by the scheme and it would be open for such persons to lodge their objections and suggestions which the appropriate authority will have to consider.

35. Thus, we are convinced that there is merit in the first and the preliminary submission canvassed on behalf of the respondents that the petition deserves to be rejected at the very threshold since it is at a premature stage.

36. We could have stopped here holding that the petition is not maintainable as it is at a premature stage and saying no more but since we have heard both the sides at length on the legal submissions canvassed by the petitioner, we have thought fit to consider those submissions also on merits.

37. The first argument of Mr. Bhatt, the learned counsel appearing on behalf of the petitioner is that according to Section 1, Clause (3) of the Act, the Act shall come into force with effect from such date as the State Government may by notification appoint. According to Mr. Bhatt, in view of the provisions of Section 1, Clause 3 of the Act, the Act does not come into force on the date on which the Act is enacted but the condition precedent for the Act be brought into force is the issuance of notification by the State Government. According to Mr. Bhatt, the notification means the notification published in the official gazette. In the present case, the Government of Gujarat issued a notification dated 30.1.1978 appointing 1st of February 1978 as the date with effect from which the Act would come into force.

38. Mr. Bhatt would submit that the Act cannot be deemed to have come into operation earlier than 23rd February 1978 and the powers under the Act could not have been exercised by the Government before 23.2.1978. The basis for this argument appears to be that the Vadodara Urban Development Authority (VUDA) was constituted by a notification dated 30.1.1978 published in the official gazette dated 23.2.1978. Thus, according to Mr. Bhatt, the Government exercised powers u/s 22 of the Act to constitute VUDA by notification dated 30.1.1978 which was published in the official gazette dated 23.2.1978. According to Mr. Bhatt, the State Government had no authority, power or jurisdiction to exercise powers u/s 22 of the Act on 30.1.1978 since the Act could not be said to have come into force. The sum and substance of the argument of Mr. Bhatt is that the Act came into operation by notification dated 30.1.1978 which was published in the official gazette on 23.2.1978 and, therefore, the Act should not have come into operation from 1.2.1978.

39. We do not find any merit in the submission canvassed on behalf of the petitioner for the simple reason that although the petitioner in support of such submission has placed on record the notification dated 30.1.1978 published in the Gujarat Government Gazette dated 23.2.1978, yet the position has been explained by the State Government vide their affidavit-in-reply stating that the notification dated 30.1.1978 was published in the official gazette twice, once in the extraordinary gazette on the same day i.e. on 30.1.1978 and, thereafter in the ordinary gazette on 23.2.1978. Along with the affidavit-in-reply a copy of the gazette dated 30.1.1978 has also been annexed. This fact has not been disputed by the petitioner. In light of such clarification at the end of the State Government, the first argument canvassed on behalf of the petitioner loses its significance. It could not be said that the constitution of the Vadodara Urban Development Authority was illegal and without jurisdiction.

40. The merit of the first argument, referred to above, could be tested from a different angle. Let us assume for the sake of argument that the notification dated 30.1.1978 was published only for the first time on 23.2.1978 and not prior to that. In such circumstances, if prior to coming of the Act into force if the Government of Gujarat constituted Vadodara Urban Development Authority vide order of 1.2.1978 whether the same could be said to be without jurisdiction. At this stage, it may not be out of place to state that the order dated 1.2.1978 passed by the State Government in exercise of powers u/s 5 and 22 of the Act constituting Urban Development Authorities at Ahmedabad, Vadodara, Surat, Rajkot, Jamnagar and Bhavnagar is not under challenge. What is under challenge is the notification published in the official gazette on 23.2.1978.

41. We propose to consider the merit of the submission in light of Section 22 of the Gujarat General Clauses Act, 1904. It reads as under:

22. Where, by any Bombay Act [or Gujarat Act] which is not to come into operation on [the passing thereof], a power is conferred to make rules or by-laws, or to issue orders with respect to the application of the Act, or with respect to the establishment of any Court or office, or the appointment of any Judge or officer thereunder, or with respect to the person by whom or the time when, or the place where, or the manner in which, or the fees for which anything is to be done under the Act, then that power may be exercised at any time after [the passing thereof], but rules, by-laws, or orders so made or issued shall not take effect till the commencement of the Act

42. Section 22 of the Gujarat General Clauses Act corresponds to Section 22 of the Central General Classes Act.

43. Section 22 confers power on the Government or other authority to make rules or issue orders with respect to application of the Act and other matters mentioned therein in cases where there is a time gap between the passing of the Act and its coming into force. Section 22 empowers the concerned authority to exercise the power conferred by the Act at any time after the passing of the Act but any Rules or orders were made or issued shall not take effect till the commencement of the Act. Section 22 is, thus, an enabling provision intended to facilitate the making of the Rules and orders before the date of commencement of the enactment in anticipation of its coming into force. Thus, it validates issuance of Rules and orders made after passing of the Act but before it comes into force with a view to bring the Act into effective operation on the date of its coming into force.

44. Our attention has been drawn by Mr. Trivedi, the learned Advocate General appearing for the State Government to a Division Bench decision of the Andhra Pradesh High Court in the case of The Gram Panchayat and Others Vs. Government of Andhra Pradesh and Another, In that case, the Act received the assent of the President on 20.1.975 and it was published in the Andhra Pradesh Gazette dated 27.1.1975, but under Sub-section (3) of Section 1, the Government fixed 1.10.1975 as the date on which the Act would come into force. Thus, there was a time-lag of nearly eight months and ten days between the date of receiving the assent of the President and the date of coming into force of the Act. The impugned GO in that case was issued by the Government on 27.9.1975 but it was notified in the gazette on 1.10.1975. The contention before the Division Bench of the Andhra Pradesh High Court was that the GO 411 was issued by the Government on 27.9.1975 prior to the coming into force of the Act and such an act was without jurisdiction and, therefore, illegal and void ab-initio. In that case, it did not acquire validity by its notification in the gazette after coming into force of the Act.

45. The question that fell for the consideration of the Andhra Pradesh High Court was whether the Act of the Government in issuing the GO on 27.9.1975 was wholly devoid of jurisdiction. The Court took the view that Section 6 of the Andhra Pradesh General Clauses Act was a complete answer to the challenge of the said GO.

46. The Court made following observations in paragraphs 29 and 30:

29. Section 6 of the State Act clearly empowers the State Government or other Authority to make rules or issue orders with respect to the application of the Act after the passing of the Act but before the commencement of the same.

30. In the instant case, the Government which is the Authority empowered to issue the orders under S. 2(o) and S. 13(1), exercised the power after the passing of the Act but before the coming into force of the Act with a view to apply the provisions of the Act immediately on its coming into force and is covered by the provisions of Sec. 6 of the A.P. General Clauses Act and is, therefore, valid. The order in G.O.Ms. No. 411 did not become effective or operative on the date on which it was issued but it acquires statutory force under S. 2(k) only on the date of its publication in the Gazette on 1-10-1975, the date on which the Act came into force. This notification in the Gazette is in conformity with the provisions of S. 2(o) and S. 13(1) read with S. 2(k) of the Act. Hence the said G.O. having been notified in lawful exercise of the provisions of the Act after the Act came into force the said G.O. cannot be said to be illegal or devoid of jurisdiction.

47. The Andhra Pradesh High Court in support of the reasonings assigned in paragraphs 29 and 30, referred to above, placed reliance on Section 37 of the English Interpretation Act, 1889 and other English cases including a passage from Craies on statute law, 7th edition. We may quote with profit paragraphs 22, 23, 24, 25, 26, 27 and 28 as under:

22. Section 37 of the English Interpretation Act, 1889 which corresponds to the aforesaid sections of the State Act and the Central Act, reads as follows:

Where an Act passed after the commencement of this Act is not to come into operation immediately on the passing thereof, and confers power to make any appointment, to make grant or issue any instruction, that is to say, any Order in Council, order, warrant, scheme, letters patent Rules, regulations or bye-laws, to give notice to prescribe forms or to do any other thing for the purposes of the Act, that power may unless the contrary intention appears, be exercised at any time after the passing of the Act so far as may be necessary, or expedient for the purpose of bringing the Act into operation at the date of commencement thereof subject to this restriction, that any instrument made under the power shall not, unless the contrary appears in the Act, or the contrary is necessary for bringing the Act into operation, come into operation, until the Act comes into operation.

23. The interpretation of S. 37 fell for consideration in Rex v. Minister of Town and Country Planning Ex parte, Montague Burton Ltd. (1951) 1 KB 1. In that case, the Town and County Planning Act, 1947 received Royal Assent on 6th Aug. 1947 and the Minister concerned fixed 1st July 1948 as the appointed day for the coming into force of certain provisions of the Act which did not come into operation immediately on the passing of the Act, Para 16 of Sch. X was one of the provisions which did not come into force immediately on the passing of the Act but only came into force on the 1st July 1948. On 16 June, 1948, the Minister purported to give a direction under Para 16 of Sch. X that proceedings on the applications made under the earlier Act should be continued after the coming into force of para 16 of Sch. X. The said orders were challenged in the Divisional Court on the ground that the Minister had no power to pass the orders, as Para 16 of Sch. X of the Act had not come into force on the date on which the orders were passed by the Minister. That motion was dismissed by the Divisional Court. On appeal, it was held by Tucker Lord Justice as follows:

In my view S. 37 applies to the present case. I think that it clearly gives power to take the necessary steps to set up the machinery for bringing the Act into operation as well as for doing such an act as appointing a day for the Act to come into operation. The words in Section 37 referring to regulations, bye-laws, notices, prescribed forms and so forth, make it clear that matters of that kind may be made under Sec. 37 so that the necessary machinery, will function as soon as the new Act comes into operation and things shall not come to a standstill by reason of the repeal of the existing Act. In the present case there were these applications pending under S. 1 of the Act of 1944. I think that that is just the kind of thing that is contemplated by Sec. 37 of the Interpretation Act 1889 and that having regard to para 16 of Sch. X to the Act of 1947 the order contained in the letter of June 16, 1948, was valid notwithstanding that it was made before the appointed day.

24. The same section fell for consideration in a later decision of the Chancery Division in Usher v. Barlow (1952) 1 Ch 255. In that case, the Registered Designs Act, 1949 was passed on Dec. 16, 1949 and on the same day, the Designs Rules, 1949 were made to come into force on Jan. 2, 1951 the day after the Act came into force. Section 1(4) of the Act provides that rules made by the Board of Trade under that Act might be provided for excluding from registration thereunder design for such articles, being articles which are primarily literary or artistic in character as the board think fit R.26 of the Designs Rules excluded wall plaques and other things from registration under the Act A question arose before the Court of Chancery Division as to the validity of the Designs Rules, 1949 and Rule 26 in particular, having regard to the fact that Rules were made on the day the Registered Designs Act, 1949 was passed under Ss. 1(4) and 36 of the Act, and came into force a day after the Act did so on Jan. 1, 1951 it was held that "the Designs Rules, 1949 were validly made in view of S. 37 of the Interpretation Act, 1889.

25. Jenkins Lord Justice held that the point was covered in principle by the decision in Rex v. Minister of Town and Country Planning (1951) 1 KB 1 (supra) and that the rules such as R.26 of the Designs Rules could be held to be necessary or expedient for the purpose of bringing the Registered Designs Act, 1949 into operation within the meaning of the S. 37 of the Interpretation Act.

26. Asquith Lord Justice agreed with the said view and observed as follows:

It seems to me that S. 37, on its true construction in accordance with the natural meaning of the language used is apt to authorize the making of rules such as these here concerned between the passing and the coming into operation of the relevant Act. As pointed out by Tucker Lord Justice in the passage cited above, the section extends to a comprehensive enumeration of matters; order in council, order, warrant, scheme, letters patent, rules regulations or bye-laws. Clearly many of these matters are matters requiring to be dealt with under the Act when in operation, in order that it may operate effectively, rather than matters without which the Act cannot come into operation at all.

Again the learned Judge observed that:

Section 37 should be construed as extending to whatever is necessary or expedient for the purpose of bringing the Act into effective operation at the date fixed or prescribed as the time at which the Act comes into operation.

27. Morris Lord Justice agreed with the conclusions of Lord Jenkins. Evershed Master of the Rolls expressed difficulty in treating as valid a rule made by virtue of S. 1(4) of the Act and solely relating to an exclusion under that subsection, but held that:

I do not think it would be right to pick out one rule because taken in isolation that rule might be said to fail to satisfy the requirements of S. 37 of the Act, 1889. In other words. I have been satisfied on the whole that in its context as part of a general body of rules providing the machinery for the effective operation of the new Act, this rule can fairly be said to satisfy the conditions of validity.

28. In Craies on Statute Law, Seventh Edition at page 295, after referring to the aforesaid decisions, it is observed as follows:

Time for exercising powers:

In general a power to make rules etc. cannot be exercised until the enactment conferring the power has come into operation. Exceptionally, however, the Interpretation Act 1889 provides that where an Act. (Public, Local and Personal, or Private) passed after 1889 is not to come into operation immediately on the passing thereof, and confers power to make any appointment, to make grant, or issue any instrument, that is to say, any order in council, order, warrant, scheme, letters patent, rules, regulations or bye-laws to give notices to prescribe forms, or to do any other thing for the purpose of the Act that power may, unless the contrary intention appears, be exercised at any time after the passing of the Act, so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement of the Act, subject to this restriction, that any instrument made under the power must not come into operation until the Act comes into operation unless the contrary intention appears in the Act, or the contrary is necessary for bringing the Act, into operation. This enactment is to be construed as extending to whatever is necessary or expedient for the purpose of bringing the Act into effective operation at the date fixed or prescribed as the time at which the Act comes into operation if the making of rules had to await the coming into operation of the Act itself, there would be a period of uncertainty and confusion.

48. There is one more reason why we are not impressed by the submission of Mr. Bhatt in this regard. The challenge to the validity of the Vadodara Urban Development Authority is after a lapse of almost 35 years. Mr. Trivedi, the learned Advocate General appearing for the State Government is right in submitting that the main purpose of VUDA is for the proper development or re-development of urban area according to the provisions of Section 22 of the Act. The powers and functions of the Urban Development Authority are conferred u/s 23 of the Act. Such powers are issued upon the Urban Development Authority for an effective planned development and control, keeping in view the interest of the public at large. Mr. Trivedi is justified in submitting that the challenge should fail also on the ground of delay because at such a belated stage if such a challenge is accepted then it would hamper the entire development process affecting the public at large. It would also affect and have a far-reaching repercussions upon the actions which have been taken so far by the development authorities over a period of 35 years including the implementation and execution of several town planning schemes which are in existence.

49. Mr. Trivedi is also justified in submitting that by way of notification dated 30.1.1978, almost 87 urban development authorities were declared u/s 22 of the Act by the State Government 82 authorities u/s 6, 2 authorities u/s 5 and 3 authorities other than the Vadodara Urban Development Authority and if on such a technical plea the notification is quashed or declared unconstitutional then it would lead to a disastrous situation whereby 88 authorities which came into existence on the same date and in similar conditions would also get affected.

50. In view of the above, we hold that there is no merit in the first argument of Mr. Bhatt so far as the challenge to the notification published in the official gazette on 23.2.1978, whereby VUDA was constituted is concerned.

51. The above takes us to the second argument of Mr. Bhatt with regard to the legality of the order dated 16.9.1983 passed by the Government of Gujarat in exercise of powers u/s 122 of the Act and the resolution dated 28.10.1983 delegating all its powers and functions under the Act to the Vadodara Municipal Corporation for the purpose of framing and implementation of the Town Planning Schemes.

52. According to Mr. Bhatt, the Act for the purpose of making development plan and for framing of the Town Planning Schemes has conferred powers in the entire area upon the VUDA. The area falling under the VMS is a part of the area of VUDA. Mr. Bhatt would submit that Section 122 of he Act cannot be pressed into service to prevent the development authority from exercising its powers under the Act and instead delegate such powers to some other alien authority. Mr. Bhatt would submit that the authority constituted under the Act is an expert body whereas the VMC is primarily constituted under the BPMC Act only to discharge the functions of the local-self-government. For the purpose of achieving the objects of the Act, the VMC is not an expert body but it is the VUDA which is the appropriate authority. According to Mr. Bhatt, the Section 122 of the Act does not contemplate the Government to issue a mandate to the Area Development Authority not to exercise its powers and not to discharge its duties under the Act and direct some other authority to discharge all the functions under Act. In such circumstances, according to Mr. Bhatt, the directions issued by the State Government vide order dated 16.9.1983 and the resolution to that effect dated 28.10.1983 are both illegal and unconstitutional.

53. We do not find any merit even in the aforesaid submission of Mr. Bhatt for more than one reason. It appears that vide order dated 16.9.1983 the instructions were issued upon the authority to delegate the powers u/s 23, Clause 1, Sub-clause (ii), Section 23-1(vi), Sections 68, 69, 70, 72 and 88 in favour of the VMC. Such instructions or directions are issued from time to time by the State Government in exercise of its power u/s 122, Clause-1 of the Act with a view to see that the object of the Act is sub-served. Section 122, Clause-1 of the Act reads as under:--

Sec. 122. Control by State Government.

(1) Every appropriate authority shall carry out such directions or instructions as may be issued from time to time by the State Government for the efficient administration of this Act.

Section 23 of the Act reads as under:

Sec. 23. Powers and functions of urban development authority.

(1) [The power and functions of] an urban development authority shall be:--

(i) to undertake the preparation of development plans under the provisions of this Act, for the urban development area;...........

(v) to control the development activities in accordance with the development plan in the urban development area;

2. [(v-a) to levy and collect such scrutiny fees for scrutiny of documents submitted to the appropriate authority for permission for development as may be prescribed by regulations;]

(vi) to execute works in connection with supply of water, disposal of sewerage and provision of other services and amenities;

3. "(vi-a) to levy and collect such fees for the execution of works referred to in clause (vi) and for provision of other services and amenities as may be prescribed by regulation:

(2) The urban development authority may with the approval of the State Government, delegate [any of its powers and functions] to the local authority or authorities functioning in the urban development area.

54. The area of any town planning scheme is a part and parcel of a larger municipal area or a development area where the reconstitution of plots is done and along with that the facilities like roads, water supply, drainage and other infrastructure is provided. Therefore, for proper development it is essential that the powers to make such a scheme, the implementation of the scheme and providing of infrastructure is delegated to the Municipal Corporation. The whole object appears to be to see that the development takes place smoothly. It is with such object in mind that the State Government issues directions u/s 122, Clause-1 for delegation of powers u/s 23(1)(ii) and 23(1)(iv).

55. City planning is globally recognized as a normal and identifiable function of the government. As a government function, it involves the coordination of all governmental activities that bear upon community growth and developmental change. The ultimate goals of modern urban planning have always been social with deep involvement with intermediate economic objectives. The physically oriented urban planning has the following environmental objectives:

(i) The orderly arrangement of parts of the city residential, business, industrial - so that each part could perform its functions with minimum cost and conflict;

(ii) An efficient system of circulation within the city and to the outside world, using to the maximum advantage all modes of transportation;

(iii) The development of each part of the city to optimum standards, in terms of lot size, sunlight, and green space in residential areas, and parking and building spacing in business areas;

(iv) The provision of safe, sanitary, and comfortable housing in a variety of dwelling types to meet the needs of all families;

(v) The provision of recreation, schools, and other community services of adequate size, location, and quality;

(vi) The provision of adequate and economical water supply, sewerage, utilities, and public services.

56. For these purposes, the devolution of powers to the cities occurs through legislative acts that delegate limited self-government to local corporations. By the Constitution (Seventy - Fourth) Amendment Act, 1992, Parts IX & IXA were introduced in the Constitution of India entrusting the planning function to the local bodies. Article 243W enables the legislature of a State to endow Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government with respect to;

(i) preparation of plans for economic development and social justice;

(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule. (These include, (i) Urban Planning including town planning, (ii) Regulation of land use and construction of buildings (iii) Planning for economic and social development, and (iv) Public amenities and public conveniences and other items mentioned in the Schedule.)

57. Thus, we are not impressed by the submission of Mr. Bhatt that this amounts to sub-delegation of the powers conferred by the legislature.

58. We shall now deal with the third argument of Mr. Bhatt as regards the Vadodara Municipal Corporation delegating its power to the Municipal Commissioner. According to Mr. Bhatt, the Town Planning Act does not provide for any delegation of its powers to any officer, since VUDA has already delegated its power to the VMC. In short, according to Mr. Bhatt, the VUDA has to act as if it is an urban development authority. If the Act of 1976 does not make any provision for delegation of its powers to any of its officer, the VMC while exercising the powers of the urban development authority, could not have further delegated its powers to the municipal commissioner.

59. The maxim delegatus non potest delegare deals with the extent to which a statutory authority may permit another to exercise a discretion entrusted by the statute to itself. It is true that delegation in its general sense does not imply a parting with statutory powers by the authority which grants the delegation, but points rather to the conferring of an authority to do things which otherwise that administrative authority would have to do for itself. If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree, there is in the eye of law no "delegation" at all and the maxim "delegates non potest delegare" does not apply. In other words, if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authoritys own.

60. In the aforesaid context, we may profitably refer to a Supreme Court decision in the case of Pradyat Kumar Bose Vs. The Honble The Chief Justice of Calcutta High Court, the Court observed as under:

It is well recognized that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report That is the ordinary mode of exercise of any administrative power What cannot be delegated except where the law specifically so provides - is the ultimate responsibility for the exercise of such power.

61. We may also refer to a Constitution Bench decision of the Supreme Court in the case of The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, The argument before the Supreme Court in the case was that the order dated May 19, 1965 was passed by the Chairman of the Company Law Board. It was submitted that only the Board could pass an order u/s 237 of the Companies Act and the Central Government could delegate its functions u/s 237 to the Board but it had no power to authorize the Chairman to sub-delegate its functions to himself and consequently, the Company Law Board (Procedure) Rules 1964 made by the Central Government on February 1, 1964 and the Chairmans order of distribution of business dated February 6, 1964 delegating function of the Board u/s 237 of the Companies Act to the Chairman were ultra vires the Companies Act and the impugned order was invalid.

62. The Supreme Court while repelling the aforesaid contention made the following observations, which in our opinion, are very relevant so far as the issue involved is concerned.

34-A. As a general rule, whatever a person has power to do himself, he may do by means of an agent This broad rule is limited by the operation of the principle that a delegated authority cannot be re-delegated, delegatus non potest delegare. The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot re-delegate his authority As a general rule, "if the statute directs that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited." See Crawford on Statutory Construction, 1940 Edn., Art 195, p. 335. Normally, a discretion entrusted by Parliament to an administrative organ must be exercised by that organ itself If a statute entrusts an administrative function involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the Board should exercise his individual judgment on the matter and all the members of the Board should act together and arrive at a joint decision. Prima facie, the Board must act as a whole and cannot delegate its function to one of its members.

35. The learned Attorney-General submitted that a distribution of business among the members of the Company Law Board is not a delegation of its authority, and the maxim has no application in such a case. I cannot accept this submission. In Cook v. Ward, (1877) 2 CPD 255, the Court held that where a drainage board constituted by an Act of Parliament was authorized by it to delegate its powers to a committee, the powers so delegated to the committee must be exercised by them acting in concert and it was not competent to them to apportion those powers amongst themselves and one of them acting alone, pursuant to such apportionment, could not justify his acts under the statute. Lord Coleridge, C.J. said at p. 262:

It was not competent to them to delegate powers, which required the united action of the three, to be exercised according to the unaided judgment of one of them.

Again, in Vine v. National Dock Labour Board, 1957 AC 488, the House of Lords held that a local board set up under the scheme embodied in the schedule to the Dock Workers (Regulation of Employment) Order, 1947 had no power to assign its disciplinary function under Cls. 15(4) and 16(2) of the scheme to a committee and the purported dismissal of a worker by the committee was a nullity in my opinion, the distribution of the business of the Board among its members is a delegation of its authority

36. But the maxim "delegatus non potest delegate" must not be pushed too far. The maxim does not embody a rule of law it indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted.

63. Thus, we are not impressed by the aforesaid submission of Mr. Bhatt that this is a case of abdication of statutory power by the VMC and an excessive delegation of power to the municipal commissioner.

64. We shall now deal with the fourth contention of Mr. Bhatt as regards the consultation with the Chief Town Planner. According Mr. Bhatt, the Section 41 of the Act contemplates declaration of the intention to frame the town planning scheme in consultation with the Chief Town Planner. The consultation contemplated under the Act, according to Mr. Bhatt, should be an effective consultation with the Chief Town Planner. The effective consultation requires thorough application of mind by the Chief Town Planner and the VMC in respect of the proposal to frame new town planning scheme. Mr. Bhatt would submit that all of a sudden the VMC took a hasty decision to frame 26 town planning schemes at a time. According to Mr. Bhatt, there was no effective consultation between the VMC and the Chief Town Planner.

65. It appears that the Chief Town Planning Officer has already sanctioned and given his consent for the ten schemes after approving maps prepared by the municipal corporation. From the materials on record, and more particularly the further affidavit filed on behalf of municipal corporation, the chief town planning officer has already undertaken the consultation for the other 16 town planning schemes sent by the municipal corporation and the same has been approved by him after signing the maps prepared for the 16 town planning schemes. It also appears that the Chief Town Planner has suggested that the conditions laid down by him shall be complied before submitting the proposed schemes for the approval of the government.

66. It also appears that the Municipal Corporation has also requested the DILR for verifying the measurement and boundaries of the town planning scheme as suggested by the Chief Town Planner.

67. As against the aforesaid argument of Mr. Bhatt, Mr. Shelat, the learned Senior Advocate appearing for the VMC submitted that in Section 41 neither the word "shall" has been used nor "may" has been used. According to Mr. Shelat, the consultation contemplated u/s 41 is not mandatory and should be considered as directory. According to Mr. Shelat, even if the word "shall" would have been there in Section 41, that, by itself, would not have made the provision mandatory in nature. However, according to Mr. Shelat, this issue whether the consultation contemplated u/s 41 of the Act could be termed as mandatory or directory is not of much significance because the materials on record would suggest that there was effective consultation between the appropriate authority and the Chief Town Planner and it is only after the consultation that the Chief Town Planner has sanctioned the maps and approved the same.

68. Since a pure question of law has been raised, we deem it necessary to consider the same in little details.

69. The word consult implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least a satisfactory solution. In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision. [See. Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another,

70. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. [See. Prakash Chand Maheshwari and Another Vs. The Zila Parishad, Muzaffarnagar and Others,

71. Though consultation does not mean "concurrence", it postulates an effective consultation which involves exchange of mutual viewpoints of each other and examination of the relative merits of the other point of view. Consultation of deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. [See. State of Jammu and Kashmir Vs. A.R. Zakki and others,

72. It is settled law that wherever the legislature has provided for a consultation the same is not an empty formality or a ritual to be performed. It has to be real, full, effective and meaningful. The consultation would mean that the person who is sought to be consulted is provided the material based on which the order is to be passed in order to enable the authority responsible to pass the order after considering the advise as given and sufficient opportunity must be given to such person to tender the advise.

73. Whether the requirement of consultation with another body is mandatory or directory depends upon several factors like the object of such consultation and the status and the character of the body required to be consulted. Where consultation is required with an authority which may merely provide useful information, such consultation is generally of less importance than when consultation is required with an authority which represents the interests of parties, whose public or private rights may be affected by the action proposed by the consulting authority.

74. According to Crawford on "statutory construction", the question whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning of intention of the legislature has to be ascertained not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it one way or the other.

75. In a recent pronouncement of the Supreme Court in the case of State of Gujarat and Another v. Honble Mr. Justice R.A. Mehta (Retd.) and Others reported in 2013 (3) GLH 89, the Supreme Court with respect to the appointment of Lokayukta in the State and the primacy of the opinion of the Chief Justice observed in paragraph 16 as under:

16. Thus, in view of the above, the meaning of consultation varies from case to case, depending upon its fact-situation and the context of the statute, as well as the object it seeks to achieve. Thus, no straight-jacket formula can be laid down in this regard. Ordinarily, consultation means a free and fair discussion on a particular subject, revealing all material that the parties possess, in relation to each other, and then arriving at a decision. However, in a situation where one of the consultees has primacy of opinion under the statute, either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrence. The Court must examine the fact-situation in a given case to determine whether the process of consultation, as required under the particular situation did in fact, stand complete.

76. The Supreme Court after considering its earlier decisions, explained the word "consultation" in the case of Indian Administrative Service (S.C.S.) Association, U.P. and Others Vs. Union of India (UOI) and Others, and held as under:

(1) Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. There must be definite facts which constitute foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory

(2) When the offending action effects fundamental rights or to effectuate built in insulation, as fair procedure, consultation is mandatory and non-consultation renders the action ultra vires or invalid or void.

(3) When the opinion or advice binds the proposer, consultation is mandatory and its infraction renders the action or order illegal.

(4) When the opinion or advice or view does not bind the person or authority any action or decision taken contrary to the advice is not illegal, nor becomes void.

(5) When the object of the consultation is only to apprise of the proposed action and when the opinion or advice is not binding on the authorities or person and is not bound to be accepted, the prior consultation is only directory. The authority proposing to take action should make known the general scheme or outlines of the actions proposed to be taken, be put to notice of the authority or the persons to be consulted; have the views or objections, taken them into consideration, and thereafter, the authority or person would be entitled or has/have authority to pass appropriate orders or take decision thereon. In such circumstances it amounts to an action "after consultation".

(6) No hard and fast rule could be laid, no useful purpose would be served by formulating words or definitions nor would it be appropriate to lay down the manner in which consultation must take place. It is for the Court to determine in each case in the light of its facts and circumstances whether the action is "after consultation"; "was in fact consulted" or was it a "sufficient consultation".

77. The plain reading of the Section 41 would indicate that the legislature has thought fit to provide for consultation by the appropriate authority with the Chief Town Planner before making any town planning scheme under the provisions of the Act of 1976. It is only after such consultation with the Chief Town Planner that a resolution could be issued declaring the intention to make such a scheme in respect of such area.

78. In our opinion, the consultation contemplated u/s 41 is mandatory and by any stretch of imagination cannot be held to be directory.

79. The importance of consultation as provided u/s 41 should be read in the context with Section 40 of the Act. Section 40 provides for making and contents of a town planning scheme. Section 40, Clause (1) and (2) reads as under:

Sec. 40. Making and contents of a town planning scheme.

(1) Subject to the provision of this Act or any other law for the time being in force, the appropriate authority may make one or more town planning scheme for the development area or any part thereof, regard being had to the proposals in the final development plan, if any.

(2) A town planning scheme may be made in accordance with the provisions of this Act in respect of any land which is-

(i) in the course of development;

[(ii) likely to be used for residential or commercial or industrial or for building purposes; or]

(iii) already built upon.

80. In our opinion, at the time of consultation u/s 41, the Chief Town Planner has to ascertain whether the appropriate authority has made a town planning scheme for the development area or any part thereof and secondly whether such a scheme is in accordance with the provisions of this Act in respect of any land which is (i) in the course of development and (ii) likely to be used for residential or commercial or industrial or for building purpose or (iii) already built upon.

81. Therefore, keeping Section 40 of the Act in mind it appears that the legislature has thought fit to provide for consultation u/s 41 at the stage of declaring the intention to make such a scheme. The function which the Chief Town Planner performs at that stage is an important function in public interest and, therefore, the consultation has to be meaningful and mandatory. It appears to us from the plain reading of Sections 40 and 41 of the Act that a resolution declaring the intention to make a scheme could be passed only if the Chief Town Planner approves the scheme verifying all the relevant aspects which are necessary u/s 40 of the Act.

82. Thus, to the aforesaid extent, we are not in agreement with the contention of Mr. Shelat, the learned Senior Advocate appearing for the VMC that the consultation as provided u/s 41 could not be termed as mandatory but the same could be treated only as directory. At the same time, we are in agreement with Mr. Shelat that there has been a consultation and an effective consultation with the Chief Town Planner and the materials on record do suggest the same.

83. As held by the Supreme Court in State of U.P. and Others Vs. Rakesh Kumar Keshari and Another, the limited scope of judicial review is (i) courts, while exercising the power of judicial review, do not seat in an appeal over the decisions of the administrative bodies, (ii) a petition for judicial review would lie only on certain well defined grounds, (iii) an order passed by the administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself was perverse or illegal, (iv) a mere wrong decision without anything more is not enough to attract the power of judicial review (v) the supervisory jurisdiction conferred on a Court is limited to see that the tribunal functions within the limits of its authority and that its decision do not occasion miscarriage of justice, and (vi) the Court shall not ordinarily interfere with the policy decision of the State.

84. The above takes us to the last submission of Mr. Bhatt as regards Articles 14, 19 and 300A of the Constitution of India.

85. In the aforesaid context, we may only say that the principles to be borne in mind in applying Articles 14 and 19 of the Constitution are now well-stated. The fundamental right to acquire, hold and dispose of the property can be controlled by the State only by making a law imposing in the interest of the general public reasonable restrictions on the exercise of the said right. Such restrictions on the exercise of a fundamental right shall not be arbitrary or excessive or beyond what is required in the interest of the general public. The reasonableness of a restriction shall be decided both from substantive and procedural aspects.

86. The Act, 1976 makes very elaborate provisions regarding the formalities to be gone through, by the local authority, by the State Government and by the other authorities concerned, in the matter of preparing and finalizing a town planning scheme. As observed earlier, at all stages a very wide publicity is given, by the authorities concerned, in the mater of making known its proposals to the people and to the owners of the land, who are sought to be affected by the scheme. Provisions have be en made for filing of objections and suggestions, and the authorities are bound to take into account those objections and suggestions.

87. Article 300A falls within Chapter-IV and Part-XII of the Constitution. Article 300A states that no person shall be deprived of his property save by authority of law. This article was introduced from 20.6.1979, when Article 19, Sub-clause (f) and 31 were deleted by the 44th amendment to the Constitution. Thus, the right to property was removed from Part-III relating to fundamental rights and was re-introduced as Article 300A as a constitutional right. Right to hold a property is no more a fundamental right, instead it is a constitutional right.

88. The phrase "deprivation of the property of a person" must be considered in the fact situation of a case. Deprivation connotes different concepts. Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power under the provisions of the Act, 1976 may interfere with the right to property of a person by acquiring the same but it must be for a public purpose. Having regard to the facts of the present case, it is very difficult for us to accept the contention of Mr. Bhatt that the decision of the authorities to compulsorily deduct 40% of the land of the owner at the time of granting development permission is violative of Article 300A of the Constitution. We have discussed in our judgment at length the legality and validity of such a decision and we have also explained why the same is in larger public interest, having regard to the object of the Act, 1976.

89. In our opinion, none of the submissions canvassed on behalf of the petitioner has appealed to us warranting any interference in this Public Interest Litigation. For the aforesaid reasons, this petition fails and is accordingly rejected. However, in the facts and circumstances of the case, there shall be no order as to costs.