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Gujarat High Court
Judgename :B.N.KIRPAL, H.L.Gokhale
BHUPENDRAKUMAR RAMANLAL SHAH - Appellant
Versus
STATE - Respondent
S.C.A. 1876 of 1988
Decided On : 03/30/1995
The procedure is specifically provided for under Section 52 of the 1976 Act. It is pursuant to the provisions of Section 52 that, in the present case, the impugned notification was issued on 23.11.1987. This notification specifically refers to Section 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 upgradation. 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. Section 71 has to be read along with Section 40. The guiding principles for exercising powers under Section 71 will be those as contained in Section 40 and the manner in which the power is to be exercised as contained in Section 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 section 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 Section 71 will also become a scheme as if it is enacted under the Act. The provision contained in Section 71 is in a sense analogous to the provisions of Section 21 of the General Clauses Act. A scheme is brought into operation by issuing a notification and Section 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 Section 71 of the Gujarat Town Planning and Urban Development Act, 1976.
[Paras 5, 9 & 11]
Gujarat Slum Areas Improvement, Clearrance and Redevelopment Act, 1973 - Read with Gujarat Town Planning and Urban Development Act, 1976 - Sec. 71 - Scheme made under Town Planning Act - Variation - Upgradation of slums - Change of user of land cannot be done under Gujarat Slum Areas Act - It can only be done under Town Planning Act.
What is proposed by the respondents is to amend the various schemes which had been approved under the Town Planning Development Act so as to permit the land, on which the slums exists, to be used for the purposes 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.
[Para 8]
Administrative Law - Delegated legislation - Framing of town planning scheme - Held, is not a essential legislative function - Same delegated to local authorities under the Town Planning Act - Town Planning - Slum areas.
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.
[Para 12]
Housing - Slum areas - Persons living in Slum areas - Held, can be presumed as members of socially and economically backward classes.
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 section 40, cannot be denied.
[Para 7]
( 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. 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.
( 8 ) IT was then contended by the learned Counsel for the petitioners that in res
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