BHUPENDRAKUMAR RAMANLAL SHAH v. STATE — 1995 DIGILAW 188 (GUJ)

B. N. KIRPAL, J. ( 1 ) THE main challenge in this writ petition is to the proposal of the respondents who are seeking to upgrade some of the slums which are situated on different parcels of land which form part of the scheme which were originally approved under the Bombay Town Planning Act, 1954. ( 2 ) SCHEME Nos. 10, 12, 13, 15, 17 to 22, 29 and 31 are stated to have been approved under Sec. 51 of the Bombay Town Planning Act, 1954. It appears that on some parcels of land slums have come into existence and with a view to upgrade the facilities for the said slums, notices were issued by the respondents on 23-11-1987 for the purposes of varying the said schemes. It is the said notices and the subsequent action proposed to be taken which have been challenged in the present writ petition. ( 3 ) THE contention of the learned Counsel for the petitioners is that on the town Planning Scheme being finalised under the provision of sub-sec. (3) of Sec. 65, no amendment can be made by the Executive and it is only by legislative action that any change can be brought about. Elaborating this contention, it is submitted that Sec. 65 (3) states that a final scheme is deemed to have been enacted under the Act from the date of the notification in respect thereof. Because it has become a part of the Act, it is submitted, therefore, there can be no amendment thereto except by the Legislature. ( 4 ) IN our opinion, there is no merit in this contention. Sec. 71 of the Gujarat town Planning and Urban Development Act, 1976 clearly provides that a Town planning Scheme at any time may be varied by a subsequent scheme to be made, published and sanctioned in accordance with the provisions of this Act. As regards planning Schemes, the said Act gives specific power under Sec. 71 to vary the same by a subsequent scheme. What Sec. 71, therefore, provides is that the procedure laid down in the Act for making a Town Planning Scheme will have to be followed for the purpose of varying a sanctioned scheme. ( 5 ) THE procedure is specifically provided for under Sec. 52 of the 1976 Act. What Sec. 71, therefore, provides is that the procedure laid down in the Act for making a Town Planning Scheme will have to be followed for the purpose of varying a sanctioned scheme. ( 5 ) THE procedure is specifically provided for under Sec. 52 of the 1976 Act. It is pursuant to the provisions of Sec. 52 that, in the present case, the impugned notification was issued on 23-11-1987. This notification specifically refers to Sec. 52 and a draft scheme was published and objections were invited to the same. The variation which was proposed was that some parcels of land were to be reserved for slum urgradation. The present writ petition has been filed before the disposal of the objections, if any, and the finalisation of the said variation. We do not find any illegality in the action which is proposed to be taken by the respondents in varying the scheme. ( 6 ) IT was contended by the learned Counsel for the petitioners that a scheme can be prepared or varied only for the purposes specified under Sec. 40 of the 1976 Act. It was submitted that there is no provision in the section which provides for upgradation of slums. ( 7 ) WE find that there is no merit in this contention. Sub-sec. (1) of Sec. 40 gives the power to the appropriate authority to make Town Planning Schemes for the development of an area. This power is wide enough to enable the authority to upgrade the scheme. That apart, sub-clause (j) of sub-sec. (3) specifically provides that a Town Planning Scheme may make provision for the reservation of land to the extent of 10% or such percentage as may thereto as possible of the total area covered under the scheme for the purpose of providing housing accommodation to the members of the socially and economically backward classes of people. Surely the urgradation of slums would be covered by the said sub-clause (j) of Sec. 40 (3 ). That the persons who live in the slums can be presumed to be members of socially and economically backward classes and therefore, the provision in respect thereto can be made in the Town Planning Scheme under Sec. 40 cannot be denied. Surely the urgradation of slums would be covered by the said sub-clause (j) of Sec. 40 (3 ). That the persons who live in the slums can be presumed to be members of socially and economically backward classes and therefore, the provision in respect thereto can be made in the Town Planning Scheme under Sec. 40 cannot be denied. ( 8 ) IT was then contended by the learned Counsel for the petitioners that in respect of slums there is a separate Act No. 11 of 1973 and in view thereof, no action can be taken under the 1976 Act. The said submission is devoid of any merit. The Gujarat slum Areas Improvement, Clearance and Redevelopment Act, 1973, no doubt, has been enacted for the purpose of improvement and clearance of the slum areas in the State of Gujarat and for its development, but the said Act will have to be read, wherever necessary, along with the provisions of the Town Planning Act. It is by the virtue of the Town Planning Act that the land user is decided. When an approved scheme provides for a particular use of land, for example, for a school or a garden, then, by exercising powers under the Gujarat Slum Areas Act, that land cannot be used for the purposes of rehabilitation of the slum dwellers. Under the Slum Areas act, power has no doubt been given for improvement of the slums but that power has to be exercised in accordance with law. The slum dwellers can be rehabilitated or the slums can be upgraded only on those parcels of land which are meant for use as residence. Therefore, unless and until the land user is changed, as has been proposed to be done in the present case, the upgradation of the slums on the parcels of land in question cannot legally take place. What is proposed by the respondents is to amend the various schemes which had been approved under the Town Planning and Urban Development Act so as to permit the land, on which the slums exists, to be used for the purpose of upgradation of slums. Change of user of land cannot be done under the provisions of the Gujarat Slum Areas Act. It can only be done under the Gujarat Town Planning and Urban Development Act, 1976. Change of user of land cannot be done under the provisions of the Gujarat Slum Areas Act. It can only be done under the Gujarat Town Planning and Urban Development Act, 1976. ( 9 ) THE learned Counsel lastly contended that if recourse is taken to Sec. 71 that it would amount to giving absolute and urguided power to the Executive to amend the Act and this is contrary to the fundamental features of the Constitution. We find this argument devoid of any merit. Sec. 71 has to be read along with sec. 40. The guiding principles for exercising powers under Sec. 71 will be those as contained in Sec. 40 and the manner in which the power is to be exercised as contained in Sec. 52. We further find it difficult to subscribe to the contention that any legislative power is sought to be usurped by the Executive in the present case. The framing of a scheme is a form of delegated legislation and, in view of sec. 65 (3), which provides that the scheme so framed shall have effect as if it is enacted in this Act, the scheme as amended by virtue of the powers contained in sec. 71 will also become a scheme as if it is enacted under the Act. ( 10 ) IT is contended by Shri Jayant Patel appearing for some of the other petitioners in connected matters that by virtue of Arts. 245 and 246 of the constitution, a legislative power can only be exercised by the State Legislature and once the scheme becomes part of the Act, thereafter it is only the State Legislature which can amend the same. ( 11 ) IN our opinion, the provision of Arts. 245 and 246 does not come into play here. This is not a case where the scheme has been framed by the State legislature and which is sought to be amended by an executive act or by the authority granted under Sec. 71 of the Act. The scheme itself is a form of delegated legislation having been framed not by the Act but by the authority constituted under the Act. It is that very authority to whom power has been given to amend the scheme. The provision contained in Sec. 71 is in a sense analogous to the provisions of Sec. 21 of the General Clauses Act. It is that very authority to whom power has been given to amend the scheme. The provision contained in Sec. 71 is in a sense analogous to the provisions of Sec. 21 of the General Clauses Act. A scheme is brought into operation by issuing a notification and Sec. 21 enables an authority to amend, vary or rescind any notification, order etc. in the manner in which and subject to such conditions in which the original power was exercised. This is exactly what is provided by Sec. 71 of the Gujarat Town Planning and Urban Development Act, 1976. ( 12 ) IT was also submitted by Shri Patel that an essential legislative function cannot be delegated. There can be no doubt with this proposition, but we find ourselves unable to hold that framing a scheme of Town Planning is an essential legislative function. The Act lays down the guidelines and the manner in which a town Planning Scheme is to be framed. The schemes are to be framed by the local authorities which are constituted under the Act. The scheme cannot be regarded as an essential legislative function which can only be exercised by the State Legislature. Shri Patel also relied upon the decisions of the Supreme Court in the case of M/s. Jalan Trading Co. Pvt. Ltd. , v. Mill Mazdoor Sabha reported in AIR 1967 SC 691 and B. Shama Rao v. Union Territory of Pondicherry reported in AIR 1967 SC 1480 . The said judgments have absolutely no application to the present case. In Jalan Trading Companys case the provision of Sec. 37 of the Payment of Bonus act which enabled the Central Government to remove doubts or difficulties in giving effect to the provisions of that Act was held to be invalid as it delegated legislative power to the Executive authority. It was held by the Court that by virtue of the said section the Government could determine for itself what was the purpose of the Act and to make provision for removal of difficulties or doubts by altering the provisions of an Act which would in substance amount to the exercise of legislative authority and that cannot be done. The said judgment has no application to the present case. The said judgment has no application to the present case. Similarly, in Shama Raos case (supra) what was provided was that the Sales Tax act which was applicable in Madras would become applicable in Pondicherry as of the date of the notification extending the Madras Act. It was a case of excessive delegation because the Legislature of another State could not enact with regard to pondicherry. The said situation cannot be regarded as a parallel to the present case. Here the Town Planning Schemes are framed by that very authority which has been given, by virtue of Sec. 71, the power to amend the scheme. ( 13 ) BEFORE concluding we may take note of the judgment of the Supreme Court in the case of Maneklal Chhotalal and Ors. v. M. G. Makwana and Ors. , reported in 1967 SC 1373. In that case, the challenge was to the various provisions of the Bombay Town Planning Act, 1954 which are undoubtedly in pari materia with the present Act. The challenge before the Supreme Court was to the validity of the said Act and its provisions with reference to Arts. 14 and 19 of the Constitution of India. The validity of the said Act was upheld and the Supreme Court observed in paragraph 53 that, "the Act as a whole, will have to be sustained. " the provisions of Sec. 56 of the Bombay Town Planning Act is similar to Sec. 70 and the provisions of Sec. 57 of the Bombay Town Planning Act is similar to Sec. 71 and Sec. 51 (3) is similar to Sec. 65 (3 ). It is true that there was no challenge in that case with reference to the Legislatures competence but in our opinion there is no force in that contention. ( 14 ) FOR the aforesaid reasons, there is no merit in this case. The petition is accordingly dismissed. Interim orders are vacated. The respondents would have been entitled to costs but for having chosen not to file the reply. .