MANEKLAL CHHOTALAL & ORS. v.

M. G. MAKWANA & ORS.

March 2, 1967

(K. SuBBA RAo, c. J., J. c. SHAH, s. M. SI:KRI, v. RAMASWAMI

AND C. A. VAIDIALINGAM, JJ.J

Constitution of India, 1950, Arts. 14, 19 and 31; and Seventh Schedule, List II, Entry 18, and List Ill, Entry 20-Competency of State Legislature to enact Bombay Town Planning Act (27 of 1955)-Act as amended by Bombay Town Plannin11 (Guiarat Amendment and Validating Provisions) Act (52 of 1963), if violative of fundamental rights.

The. Ahmedabad Municipal Corporation published, under s. 22 of the Bombay Town Planning Act, 1954, a declaration of its intent on tO make a town planning scheme in respect of certain areas which included the lands of the petitioners. The petitioners subm.tted their objection.• and suggestions.

A draft Town Planning Scheme was published thereafter under s. 23(1) and the petitioners again subm'tted the same objec. lions. After considering the objections and suggestions~ the draft scheme was forwarded to the State Government under s. 28 (I). The State Government sanctiOned the scheme under s. 28(2) and appointed a Town Planning Officer under s. 31 (I). He issued a public notice inviting objections and suggestions from owners of land and the pet tioners reiterated their objections.

The Town Planning Officer, thereaf:er, gave his decision under s. 32 regarding the value of the land originally owned by the petitioners, the extent of reconstituted land allotted to them, the compensation payable to them, the value of the land allotted to them taking into account the improvements in the Scheme and the net amount payable by the petitioners as their share of the contribution towards the cost of the Scheme.

As a result of the decision, the petitioners were allotted a much smaller extent of land than they originally owned and were directed to pay certain sum'S as their share of the contribution.

On appeal under s. 34 the Board of Appeal slightly reduced the amount payable by the petitioners. The petitioners thereupon filed a writ petition in this Court and contended that : -~ 1) the State Legislature was not competent to enact the statute, and (2) the provisions of

the Act, by conferring atbitrary powers on the authorities funcfoning under the Act., and by depriving the petitioners of their property, infringed their fundamental rights under Arts. 14, 19(1) (f) and 31.

HELD : (1) The heads of leg'slation in the Lists of the Seventh Schedule to the Constitution should be given a large and liberal interpretat10n unless cut down by the terms of the item itself or by other parts oJ the Constitution, so that, they may have effect in their widest amplifude.

Therefore. the v2rious aspects dealt with in the Act can be considered to deal with "land" in Entry 18 of List II and the competency of the State Legislature can be found in that enl!y. (78 F-G; 79 A, C-D, G]

Navinchandra Mafatlal v. Commissioner of Income-tax, Bombay City. (1955} I S.C.R. 829, Sri Ram Ram Narain Medhi v. State of Bombay, [1959] Supp. I S.C.R. 489 and Atma Ram v. State of Punjab, [1959] Supp. I S.C.R. 748, followed.

The Act is a lei:islation to consolidate and amend the law for the making and execution of town planning schemes for the healthy Gnd orderly development of the area.

With a view to achieve that purpose, a very elaborate procedure and machinery is prescribed in the Act. Therefore, the competency of the State Legislature could also be rested on Entry No. 20 of List III, which deals with "Economic and Social Plan ning". (79 G-H: 80 HJ

( 2) The Act and the Rules make very elaborate provisions regarding the formalities to be gone through, at every stage, by the local authority, the State Government and other authorities concerned in preparing and making final the Town Planning Scheme. At all stages, very wide publicity is given to the proposals. Provision has been made for the filing of objections and suggestions and a duty is cast on the authorities to take them into account.· The procedure to be adopted by the Town Planning Officer in the matter of giving his decisions on the various aspects has been indicated in s. 32 and in the Rules made under the Act. Principles have also been laid down regarding the fixing of the value of the original and the reconstituted plots., and for fixing the amount of contribution payable by the various owners of land. The contribution was l'ayable in easy instalments and was towards the cost of the scheme which the local authority had to incur and was not a tax or fee.

All important decisions of the Town Planning Officer are appealable to a Board of Appeal presided over by a Judicial Officer of the status of a District Judge, and the procedure to be adopted by the Board is also clearly indicated in the Act and Rules.

Therefore, the Act does not vest any arbitrary or unguided power in the authorities and only imposes reasonable restrictions on the petitioners' right to hold property.

Hence, the Act is not violative of Art. 14 and is sa9ed by Art. 19(5). [71 C-D;

82 A-D, H; 83 A-B, G]

The petitioners have no doubt lost a large extent of land.

But, having due regard to the scheme of the Act and the object sought to be achieved, such results are inevitable.

Moreover, the reconstituted plots. though of a lesser area have a higher value in view of the various improvements, and so what the petitioners lost in actual area had been more than sufficiently compensated by the increased value.

Therefore .. there is no question of any deprivation of property so as to attract Art.

31. [83 D-F]

ORIGINAL JURISDICTION : Writ Petition No. 64 of 1966.

Petition under Art. 32 of the Constitution of India for the . enforcement of fundamental rights.

B. Sen, Tricumla/ J. Patel and 1. N. Shroff, for the petitioners.

H. D. Banajee, R. Ganapathy Iyer, R. H. Dhebar and S. P.

G Nayyar, for respondents Nos. 1, 3 and 4.

Purshottam Tricumdas, Vithalbhai Patel, 0. C. Mathur, J.B.

Dadachanji and Ravinder Narain, for respondent no. 2.

D. R. Prem and S. P. Nayyar, for the intervener.

The Judgment of the Court was delivered by Vaidialingam, J.

In this writ petition, under Art. 32 of the Constitution, the petitioners challenge the constitutional validity

A of the Bombay Town Planning Act, 1954 (Bombay Act XXVII

of 1955) (hereinafter called the Act), as originally framed, and also after its amendment, by the Bombay Town Planning {Gujarat Amendment and Validating Provisions) Act, 1963 (Gujarat Act

LU of 1963) (hereinafter called the Amending Act). They also, challenge and seek to have quashed, all action and proceedings B that have been taken by the respondents, tinder the Act, in relation to the Town Planning Scheme, No. 19 (Memnagar), Ahmedabad.

The circumstances under which the petitioners have come to this Court may be briefty indicated.

The petitioners, who are stated to be members of a Hindu Undivided Family, owned certain extent of lands in two areas viz .• Usmanpur Section and ( Wadej Section. In the former, they claim to have owned lands bearing survey numbers 41/1, 41/2, 42, 51/l, 51/2 and 43, referred to as plot nos. 22 and 22-A, measuring 56, 164 sq. yds. In Wadej Section, again, they owned 14,520 sq. yds, in survey nos. 106, 3/1, 106/4, referred to as plot no. 195. Both these Sections are within the jurisdiction of the second respondent D herein, the Ahmedabad Municipal Corporation.

The second respondent, by resolution No. 475, d_atd August 20, 1959, declared its intention to make a Town Planning Scheme No. 19 (Memnagar), under s. 22(1) of the Act, in respect of certain areas of land, which included the above-mentioned lands of the petitioners. The said declaration was published in the E Bombay Government Gazette, dated September 3, 1959.

A notification was issued on November 16, 1959, stating that the second respondent was preparing a Draft Town Planning Scheme, and stating that interested persons may appear before the Town Planning Committee, on December 2, 1959, at 4 p.m., for the purpose of having the proposals contained in the Scheme explained F to the public and to elicit suggestions from the public with regard to those proposals.

The petitioners appeared before the said Committee, on December 2, 1959, and raised certain objections, and also offered some suggestions for modifying the Scheme. Written objections were also submitted by the petitioners, on or about January 9, G 1960, to the Town Planning Committee. The petitioners pointed out that in Usmanpur and Wadej Sections they owned lands to the extet, aproximately, of 70,180 sq. yds., but in the proposals as contamed m the Draft Scheme, they were expected to get only 19,087 sq. yds. and, as such, they stood to lose nearly 12 % of

ir lands, They also pointed out that they had been made H 1\able to pay a heavy contribution of Rs. 30,137 /-. The petitioners suggested that the loss to each land-owner should be equitably distributed under the Scheme and that they should be allotted lands of equal extent. ·

On June 13, 1960, a Draft Town Planning Scheme was prepared, under s. 23 ( 1) of the Act, and it was published in the Guiarat Government Gazette, dated June 23, 1960. The p.:titioners, again, submitted the same objections and suggestions, which they had placed for consideration, before the Town Planning Committee.

After considering the objections and suggestions made by the petitioners, the second respondent forwarded the Draft Town Planning Scheme to the third respondent, the State of Gujarat, under s. 28 ( 1) of the Act. The third respondnt, again, sanctioned the said Draft Scheme, under s. 28(2) of the Act and also appointed a Town Planning Officer, under s. 31 ( 1) of the Act.

Subsequently, there was a change in the personnet of the Town Planning Officer, originally appointed.

Ultimately, the Town Planning Officer issued a public notice in October 1961, inviting objections and suggestions from owners of lands in respect of the Draft Town Planning Scheme, which was being considered by him

The petitioners, again, filed objections in November 1961, before the said Town Planning Ollicer, and here also they reiterated the same objections and suggestions which they had placed before the Town Planning Committee at the earlier stage, and before the second respondent, later.

In the Draft Scheme prepared by the second respondent, and sanctioned by the State of Gujarat, the petitioners' lands, viz .. survey nos. 41/1, 41/2, 51/1, 51/2 (being plot no. 22) and survey no. 43 (being plot no. 22A) were shown as item no. 18, and lands, survey nos. 106, 3/1 and 106/4 (plot no. 195) were shown as item no. 163. The Town Planning Officer i>sued notices in April and June 1962, to the petitioners. In the first notice, it was mentioned that the petitioners were being allotted new plots, nos. 32, 34 and 43, measuring 19,087 sq. yds as against plots nos. 22 and 22-A, measuring 56, I 64 sq. yds. It was also stated that the value of the original plots nos. 22 and 22-A, was Rs. 37,556/- and of the new plots nos. 32, 34 and 43, was Rs. 14.315 /- and that, in consequence, the petitioners were entitled to a payment of compensation. under s. 67, in the sum of Rs. 23,241 /-. The notice further stated that the value of plots nos. 32, 34 and 43, after taking into account the improvements in the Scheme, was Rs. 1.35,590/-, and. after deducting the price of those plots, without reference to the improvements, viz ..

Rs. 14.315/-, the increase, under s. 65 of the Act, was

R<. 1,21.275/-.

The neti•ioner. were therefore liahle to pay a contribution; under s. 66, at the rate of 50% on the increment, viz .. Rs. 60,638/-; and after givirg credit to the petitioners, in the sum of Rs. 23,241 /-, they were called upon to pay a sum of Rs. 37.397 /-.

The second notice also mentioned that, as against the petitioners' plot no. 195, measuring 14,520 sq. yds., n~ other plot was being allotted to them and that the compensauon payable to them m respect of the said plot, without reterencc to the .improvements in the Scheme, was Rs. 7,260/-. By virtue of these lwo notices, the petitioners were being allotted tresh plots of an extent of 19,087 sq. yds., and they were called upon to pay a sum of Rs. 30,133/-, as their share of contribution, and they were also required . to furnish thei~ objections or. suggestions., wiin the time specified.

The peuuoners filed the1r written ob1ecuons to the proposals contained in the said two notices; and they also

appeared on the dates mentioned in the notices and reiterated the matters contained in their written objections.

The first respondent herein, the Town Planning Officer, issued ou January 20, 1965, two communications, stated to be his award, under s. 32(3) of the Act. In the first of these communications, the petitioners were informed that in lieu of their plot no. 22, measuring 37,873 sq. yds., they were allotted Final Plots nos. 52, D 54 and 57, measuring 20,183 sq. yds., and the value, under s. 67, was fixed at Rs. 8,222/-. The petitioners were also informed that tire calculation of increment of the value of 20,183 sq. yds allotted to them, under s. 65, was Rs. 1,08,483/- and, at the rate cf 50%, as per s. 66 of the Act, they were liable to pay a contribution of Rs. 54,241/-. After adjusting the value of the lands, E o[ Rs. 8,424/, the net contribution payable by the petitioners was stated to be Rs. 45,817/-.

Similarly, in the second communication, the petitioners were informed of the allotment of final plot no. 94, measuring 15.375 sq. yds, as against plot nos. 22A and 195 measuring in the agl!regate 32,307 sq. yds. The petitioners were further informed that F for the loss of 16,932 sq. yds. they would be entitled to compensation under s. 67, in the sum of Rs. 4,622/-. The cidculation of increment, with reference to improvement in resnect of the final plots.allotted as per s. 65, was stated to be Rs. 65.344/-. In consequence, the share of contribwion, under s. 66. payable bv the petitioners at the rate of 50%, was fixed in the sum of Rs. 32.6721-.

G Adjusting the sum of Rs. 4.622/- being the comnensation navble to the petitioners. their net liability, as contribution, was fixed m the sum of Rs. 28,050/-.

• The final poition, under these two notices, was that the petitioners were gettml! land of an extent of 35.558 sQ. vd,;., as against the original extent of land of 70.180 sq. yds., and they had to pay H a sum of Rs. 73,867 /- as contribution.

The petitioners preferred anpeals to the Board of Appeal, under s. 34 .of the Act.

The Board of Appeal reduced the

SUPRBMB COURT REPORTS

(1967) 3 S.C.R.

increased value of the final plots by giving a general reduction of 60 paise per square yard.

As a result of the appeal, the petitioners had still to pay a contribution of a sum of Rs. 63,199/-, .apart from losing 34,622 sq. yds., of land. The Town Planning Officer made consequential changes in his original award, incorporating the decision of the Board and forwarded the final Scheme to the State Government for its sanction. It is, at that siagc, the petitioners have come to this Court, seeking the reliefs mentioned above.

The main contentions raised by Mr. B. Sen, learned counsel for the petitioners, are: (i) The State LegiSTature was not competent to pass the Act as the subject, dealt with under the Act, is not covered by any of the entries in List II, or List III, of the Seventh Schedule to the Constitution.

iii) Even assuming that the State Legislature could pass the Act in question, nevertheless, the provisions regarding the levy of contribution towards the cost of the Scheme and all other matters relating to the working of the scheme, are unauthorised and unreasonable and that the powers vested in the Town Planning Officer, and the other authorities, under the Act, are unguided, arbitrary and uncontrolled and, therefore, the provisions of the Act infringe the fundamental rights of the petitioners under Arts. 14, 19(1)(f) & (g), and 31 of the Constitution.

On behalf of the State, the third respondent, Mr. H. D. Banajce, learned counsel, has pointed out that the State Legislature w:is competent to pass the Act in question. In particular, he supports the competency of the Legislature to enact the measure in question, on the basis of Entries nos. 6 and 18 of List II, and Entry no. 20 of List III, of the Seventh Schedule. Counsel also points out that a local authority, with a view to achieve a systematic and proper planning, providing amenities like water-supply, drainage, roads, etc., has been empowered to go in for a townplanning scheme.

After providing for these amenities, and allotting sites for public purposes like schools, hospitals, markets, police-stations etc., the remaining lands are re-constituted by changing their boundaries in order to make the areas capable of being properly developed.

Re-constituting of the plots is absolutely necessary inasmuch as in working out the Scheme, some area from an ad.ioining land may have to be added and some other area from the original holding may have to be taken away, as may be necessary, and to achieve the purposes for which a planned development scheme is framed.

As far as possible, each owner of land is given a new plot, though it may not be of the same extent or in the same area.

And, in exceptional cases, when the owner loses a holding altogether, he is awarded compensation.

A By reference to the Act and the rules framed thereunder, counsel pointed out that elaborate provisions have been made as to how the local authorities, in framing the Scheme, had to flinction, as also how the Town Planning Officer, who works the Scheme, has to act.

Opportunity had been provided, at every stage, right from the beginning to the end, counsel points out, ll to owners of property, like the petitioners, to place their objections and suggestions.

The petitioners also had taken advantage of those provisions and had been heard and their objections considered. All the important decisions of tlie ToWll Planning Officer are made the subject of appeals to a Board of Appeal, of which the President is ari exrienced judicial officer of the status. of a C District Judge.

Principles had also been laid down by the Act regarding the fixing of valuation of the original plots and the reconstituted plots and for fixing the amount of contributien • payable by parties.

Payment of contribution was to be in easy instalments.

None of the fundamental rights of the petitioners, according to Mr. Banajce,' had been affected.

D These contentions of the State have been supported by Mr.

Purshottam Tricumdas, learned counsel appearing for the Ahmedabad Municipal CorporatiOn, the second respondent herein.

This will be a convenient stage to refer to the scheme of the Act and consider the question as to whether the State Legislature E is competent to enact this legislation, because, if the contentions of the learned counsel for the petitioner that the State Legislature had no competence to enact this measure is accepted, no other questions will arise for consideration.

There was, originally, an Act called the Bombay Town Planning Act, 1915 (Bombay Act I of 1915), which has been repealed by s. 90(1) of the Act. The object of the 1915 Act is stated to be 'to provide for the making and execution of townplaning schemes'.

The preamble to the said legislation sta!U that it was found expedient that the development of certain areas sbould be regulated with the general object of securing proper sanitary conditions, amenity and convenience to the persons living in such areas and in neighbouring areas.

We only refer to the 1915 Act for the limited purpose of showing that the said Act was conceived with the intention of regulating the development of certain areas for the purpose of securing proper sanitary conditions etc., to the persons living not only in such areas, but 11lso in

nighbouring areas.

The Acl came into force on April l, 1957, and, there is no co.atroversy, that it has been made applicable to the State of Gujarat. In some respect the. Act was amended by the Amend-

72 SUPllBMB COUllT llBPOllTS [t 967] 3 s.c.a.

ing Act of 1963. The Act is a legislation to consolidate and A amend the law for the making and execution of town planning' schemes, and, in order to ensure that town planning schemes arc made in a proper manner and their execution is made effective.

Sub-sections (2), (4), (6) and (9) of s. 2, define the expressions 'development plan', 'local authority', 'plot' and 'reconstituted plot', In particular, the expression 'reconstituted plot' means a plot which is in any way altered by the making of a town planning scheme.

Sections 3 to 17, in Chapter II, deal with development plans.

Section 3 makes it obligatory on a 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 to submit the same to the S.ate Government for sanction, Sub-section ( 4) of s. 3 gives power to the State Government to prepare and publish, in the prescribed manner, a development plan, in the circumstance> mentioned therein.

Section 4 provides for the local authority making a declaration of its intention to prepare a development plan, before carrying out a survey for the purpose of preparing the. said plan, and a copy of, the said declaration is to be sent to the State Government for publication in the Gazette.

It also provides for the declaration being published in the prescribed manner and for inviting suggestions from the public within two months of the date of publication.

A copy of the development plan is to be sent to the State Government and another copy is to be made available, by the local authority, for inspection by the public.

Under s. 7, the development plan has to indicate the manner in which the development and improvement of the area is to be carried out and regulated, and it shall contain the proposals mentioned in clauses (a) to ( e). The particulars referred to in s. 8 have to be published and submitted to the State Government, along with the development plan.

Section 9 provides for the local authority considering any suggestions that may be made to such development plan, by any member of the public, if those suggestions are communicated in writing, within two months from the date of publication.

Section 10 gives power to the State Government, after consulting the Consulting Surveyor, to sanction the development plan submitted to it by .the local au•hority, ei•her without modification or subject to such modification as it consi1ers necessary.

The sanction of the State Government has to be notified in the Officia 1 G1rette. Section 11 gives power to the local authority to acquire either by agreement or under the Land Acquisition Act of 1894. anv land designated in the develooment p1an for a purpose specified in clauses (b) to ( e) of s. 7.

The remaining sections in Chapter Il, deal with matters like placing restriction on an owner doing any work on the land, after publication of the declaration of intention under s. 4(1 ), and the local authority granting permission to the owners' concerned.

CHHOTALAL v. MilWANA (Yaidlalingam, 1.) 1.~

Chap, tcr ; m, comprising a.~, 18 to :20, deals with the making of and the contents of a town planning scheme. Section 18 pides for a local authority. subject to the provisions of the Act, or any other law for the time being in force, making one or more town planning schemes for the purpose of implementing the proposals contained in the final development plaii. The town planning scheme can provide for any of the matters mentioned in els. 1

(a) to (I) referred to in sub-s. (2) of s. 18. Section 19 relates to a decision being given by the Town Planning Officer, relating to disputed ownership of the properties comprised in the scheme, but it is made clear that any decision given by him, though not subject to appeal, shall not operate as a bar to a regular suit. It also makes provision for any decision given on this question by the Town Planning Officer being; corrected, modified or rescinded in the event of a Civil Court making an adjudication. Section 20

is an enabling; provision for the purpose of making or executing any town plallning scheme.

Sections 21 to 30, which occur in Chapter IV, deal with the declaration of intention to make. a scheme and the making of a draft scheme. A Town Planning Scheme, under s. 21, may be made, in accordance with the provisions of the Act, in respect of a land which is in the course of development~ or is likely to be used for building purposes, or is already built upon. Section 22 autho.riscs a local authority to declare its intention to make a town planning scheme by resolution.

The local authority is to publish its declaration, within the time mentioned therein; and it is also bound to despatch a copy thereof to the State Government, along with a plan showing the area which it proposes to include in the scheme. Sub-s. ( 4} of s. 22 provides for a copy of the plan being made available to the public for inspection. Section 23 provides fer the local authority, in consultation with the Consulting Surveyor, to make a draft scheme within twelve months of its declaration of intention and publish the same in the prescribed manner.

Section 24 gives power to the State Government, in the circumstances mentioned therein, to require a local authority to make and publish a draft scheme and send it to the Government for approval.

Section 25 specifics the various particulars which a draft scheme should contain.

Section 26 provides that in the draft scheme, the size and shape of every reconstituted plot is to be determined in such a manner as to make it suitable for building purposes. If the plot is already built upon, it provides that the reconstitution is to ensure that the building, as far as possible, complies with the provisions of the scheme as regards open spaces. Sub-section (2) of s. 26 specifics the nature of proposals, to be found in the draft scheme. In particular, it provides for a reconstituted plot being fanned by alteration of the boundaries of the original plot; formation of reu Sup. CI/67--6

constituted plot by the transfer, wholly or partly, of the adjoining

lands; for allotting a plot to any owner dispossessed of land in furtherance of the scheme and for transfer of the ownership of a plot from one person to another. It may be stated, at this stage, that, as will be seen from sub-cl. ( d) of s. 26 ( 2), the intention of the Act appears to be that the Town Planning Scheme should, as far as possible, make the provisions for allotment of plots, to owners, who arc being dispossessd of their property.

Section 27 relates to filing of objections, within one month from the date of publication of the draft scheme, and the local authority being bound to consider those objections and making suitable modifications, as it thinks fit, before submitting the draft scheme to the State Government.

Under sub-s. (l) ot s. 28, the local authority has to forward, within the time mentioned therein, the draft scheme, together with any modifications made by it, along with the objections that may have been filed by persons affected by such scheme and make an application to the Stat~ Government for sanctioning the same.

Sub-s. (2) provides for the State Government; after making such enquiry as it thinks fit and, after consulting the Consulting Surveyor, sanctioning th~ scheme with or without modifications; and the sanction is to be published in the State Gazette.

Sub-s. (3) makes it obligatory when the State Government sanctions the scheme, to state in the notification itself, about the place and time the draft scheme will be open to the public for inspection.

Chapter V, in which ss. 31 to 43 are to be found, deals with the Town Planning Officer and the Board of Appeal. Sectbn 31 deals with the appointment of a Town Plan!ling Officer, by the State Government, within one month from the date, on which its sanction to the draft scheme is published.

It also provides for the State Government removing the said officer and appointin~ another officer, in circurristances mentioned therein.

Section 32 enumerates the duties of the Town Planning Officer.

He i~ to act in accordance with the prescribed procedure, and decide the various matters mentioned in els. (i) to (xiv) of s. 3211 ).

Among other matters, the Town Planning Officer has to fix the difference between the total values of the original plots and the total of the values of the plots included in the final scheme; estimate the portion of the sums payable as compensation on each plot used, allotted or reserved for a public purpose or purpose of the local authority which is beneficial to the owners and residents within the area of the scheme and partly to the general

public and which are to be included in the cost of the scheme: estimate the increment to accrue in respect of each plot included in the final scheme; calculate the proportion in which the increment of the plots included in the final scheme shall be liable to contribution to the costs of the scheme; calculate the contribution

CHHOTALAL v. MAKWANA (Vaidialinzam, J.) 75

to be levied on each plot included in the final scheme; determine the amount to be deducted from, or added to, as the case may be, in the contribution leviable from a person and provide for the total or partial transfer of any right in an original plot to a reconstituted plot or provide for the extinction of any right in an original plot.

Section 33 makes the decision of the Town Planning Officer. rendered under s. 32( 1), final and conclusive, except in matters arising out of els. (v), (vi), (viii), (ix), (x) and (xiii) of sub-s. ( 1) of s. 32.

Section 34 provides for decisions given by the Town Planning Officer, under the clauses as shown above, being communicated to the party concerned and it gives a right to any person aggrieved by that decision, to appeal, within on~ month from the date of communication of the decision, to the Principal Judge of the City Civil Court, Bombay, in Greater Bombay and elsewhere, to the District Judge.

The appeal is to be disposed of by a Board of Appeal constituted under s. 35, according to which it should consist of a President and two Assessors, the President being the Principal Judge of the City Civil Court in Greater Bombay, or such other Judge of the said Court as may be appointed by the State Government, and elsewhere, the District Judge.

Section 3 5 provides for the appointment of fit and proper persons as Assessors, who are to sit with the President to constitute the Board of Appeal to decide an appeal against the decision of the Town Planning officer, under els. (v), (vi). (viii), <ix), (x) and (xiii) of s. 32(1). Section 40 provides for the Town Planning Officer being required to modify, or vary his decision in accordance with the decision of the Board of Appeal and the dci<; on of t11e. Board of Appeal being final and conclusive and binding on all persons.

Section 43 provides for the Town Planning Officer forwarding to the State Government, the final scheme as varied by him, in accordance with the decision, if any, of the Board of Appeal, along with his decision, and a copy of the decision of the Board in appeal.

Chapter VI, which comprises ss. 44 to 61, relates to the splitting up of schemes into sections and preliminary schemes. Section 53 lays down the effect of a final scheme, and states that when it has come into force. all lands required by the local authority. unless otherwise provided, should vest in the local authority

absolutly free from all encumbrances and all rights in the orig!-

nal plots which have been reconstituted being determined and the reconstituted plots becoming subject to the rights settled by the Town Planning Officer. ·

Chapter VII conslsts of ss. 62 and 63 and deals with joint town planning schemes.

ChaptC" VITI. which comorises ss. 64 to 78, deals with finance.

Section 64 refers to what all items

SUPREME COURT REPORTS {1967] 3 S.C.ll.

shall be included in the costs of a town planning scheme. The difference between the total values of the orginal plots and the total values of the plots included in the final scheme, which is to be fixed under s. 32(1).(iii) by the Town Planning Officer, is to be arrived at in the manner provided in s. 64 ( 1 ) ( f). Broadly, the estimate that is to be made of the value of the original plots and the value of the plots included in the final scheme, is to be on the market value at the date of the declaratjon of intention to make a scheme, without reference to improvements contemplated in the scheme.

The estimate of the increment that accrued in respect of each plot included in the final scheme and which is to be fixed by the Town Planning Officer, under s. 32(l)(viii), is again to be done in accordance with the provisions of s. 65.

Here again, it will be seen that the estimate that is to be made is the market value of a plot included in the fuial scheme, as on the date of the declaration of intention to make a scheme, on the assumption that the scheme has been completed and the market value of the said plot on the same date, without reference to the improvements contemplated in the scheme, has been taken into account. Section 66 relates to contribution towards costs of the scheme and the Town Plarining Officer must, have regard to these provisions when fixing the proportion of contribution of a plot included in the final scheme under s. 32(l)(ix). Again, in determining the amount to be deducted from, or added to, the contribution leviable from a person under s. 3 2 ( 1 )(xi), the provisions _of s. 67 will have to be applied.

The total or partial transfer of right in an original plot to a reconstituted plot, as well as the extinction of any right in an original plot, which has to be decided by the Town Planning Officer, under s. 32(l)(xii), must be in accordance with the provisions of s. 68.

Section 71 provides for payment of compensation to the owner of an original plot who is not provided with a plot in the final scheme or if the contribution to be levied from him under s. 66 is less than the total amount to be deducted therefrom under any of the provisions of the Act.

Section 73 provides for payment. by the local authority, by adjustment of account, of payments due to be made to any person.

Chapter IX deals with various miscellaneous matters.

Section 87 provides for rules being made by the State Goveent for carrying out the purposes of the Act; and, under sub-section (2) the State Government has got the power to mak.\' rules jn respect of the various matters mentioned in _clauses (a) to (w).

The Act was amended, with retrospective effect, by the Amending Act of 1963.

Section 3 of the Amending Act has deletd he original clause (I ) of s. 18 and substituted a new clause tn its place. Clause

( i) in the proviso to sub-s. (l) of s. 66, has been substituted by a new. clause. That relates as to how exactly the cost of the scheme is to be met. Section 7 of the Amending Act validates certain actions taken and things done and, in particular, cl. (a) of this section provides that the validity of a Town Planning Scheme already 11111ctioned or continued as sanctioned, cannot be called in question merely on the , ground that a development plan, in respect of the area to which the Town Planning Scheme relates, has not been prepared, published or sanctioned before the Town Planning Scheme was sanctioned or continued.

One of the contentions advanced before us, by learned counsel for the petitioners, was that the Town Planning Scheme which is under attack'., has been framed without previously complying with the provisions of Chapters Il and III of the Act and, therefore, the entire proceedings are illegal and void.

But this contention, in our opinion, has not been, rightly, pursued further, in view of the retrospective nature of the Amending Act. No doubt, according to the petitioners, the Act as well as the Amending Act, are both void because the Legislature had no competency to enact these statutes.

That is a different aspect, which will be dealt with by us presently.

Under s. 87 of the Act, the State Government has framed rules on November 15, 1955; called the Bombay Town Planning Rules, 1955, hereinafter called the Rules. It is only necessary to run through some of the material provisions of these rules.

Rule 3 relates to the publication of the declaration, under s. 4.

Rule 4 deals with the publication of the development plan. Rule 12 relates to publication of the declaration under s. 22. Rule 13 deals with the meeting of owners of land and formulating of tentative proposals. Rule 14 deals with the publication of draft schemes under s. 23. Rule 17 enumerates the various particulars to be incorporated in a draft scheme, apart from the particulars specified in els. (a) to (g) of s. 25. Rule 21 deals with the procedure to be.followed by the Town Planning Officer.

Rule 23 deals with the procedure to be adopted by the Board, on appeal.

Rule 3 3 deals with the manner of serving notices; and r. 34 deals with proceedings of local authorities.

We have only broadly referred to some of the rules.

A perusal of the rules clearly shows that elaborate provisions have been made for giving as wide a publicity, as possible, at all stages, to the public and to owners of. land, who may be affected by the scheme.

They provide for objections being filed, and their being beard by the authorities concerned. The rules also deal, elaborately with various other matters relating to the scheme, dealt with by the Act.

The first question that arises for consideration is regarding the competency of the State Legislature to enact the statute in question.

According to Mr. Sen, learned counsel for the petitioners, the Act provides for transfer of rights, from one person, in a plot originally owned by him, to another person to whom it may be allotted under the Act.

The Act also provides for extinguishment of rights of the original owner in the plots concerned. These are, according to learned counsel, not covered by any of the entries either in List lI or List Ill of the Seventh Schedule to the Constitution. Again, it is pointed out, that the Act requires owners of the plots to pay compensation which is really, so to say, ir tax levied by the State on capital assets, for which also there is no power to be found in any of the Entries in List II or List III.

The State seeks to justify the competency of the Legislature, relying upon the Entries Nos. 6 and f8 of List II and Entry No. 20 of List III, of the Seventh Schedule.

Having due regard to the scheme of the Act as well as the provisions contained in it, in our opinion, the competence of the State Legislature to enact the same can be rested either on Entry No. 18 of List II, or on Entry No. 20 of List III, of the Seventh Schedule.

Entry No .. 1 s of List II is as follows :-

"Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization."

The legislation, in question, can be broadly stated to be a leitislation in regard to land.

As pointed out by this Court in Sri Ram Ram Narain Medhi v. The State of Bombay(').

"It is well-settled that these heads of legislation should not be construed in a narrow and pedantic sense but should be given a large and liberal interpretation".

Further, in Navinchand_ra Mafatlalv. The Commissioner of lncomn.- G tax, Bombay City( 2 ), this Court expressed the rule of interoretation, as follows :-

"The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider, that in construing words in a constitutional enactment conferring legislative power the most liberal construction should

(l) [1959] Supp. 1 S.C.R. 489, 496.

(2) [1955} I S.C.R. 829, 836.,

be put upon the words so that the same may have effect in their widest amplitude."

In construing Entry No. 18, of List II, this Court, in Atma Ram

v. The State of Punjab('), adopted the interpretation placed by the Judicial Committee of the Privy Council in Megh Raj v. Allah Rakhia('), while construing Item 21 of List II (Provincial List) of the Seventh Schedule to the Government of India Act, 1935, which was more or less substantially, in terms of Entry No. 18 of List II of the Seventh Schedule to the Constitution.

Their Lordships of the Privy Council concluded that Item 21 relating to land, would include mortgages as an incidental and ancillary subject. This Court, in referring to that decision, <ibsed at p. 755:

'Their Lordships observed that Item 21 aforesaid, forming a part, as it did, of the Constitution, should on ordinary principles, receive the widest construction, unless, for some reasons, it is cut down either by the terms of that item itself, or by other parts of the Constitution, which have, naturally, to be read as a whole; and then proceeded to make the fol!owing very significant observations :-

"As to item 21, 'land', the governing word, is followed by the rest of the item, which goes on to say, 'that is to say'.

These words introduce the most general concept-'rights in or over land'. 'Rights in land' must include general rights like full ownership or leasehold or all such rights. 'Rights over land' would include easements or other collateral rights, whatever form they might take.

Then follow words which are not words of !imitation but of explanation or illustration, giving instances which may furnish a clue for particular matters ...... " '

The various aspects dealt with in the Act, in question can be considered to deal .with 'land', and, accordingly, the cmpe tency of the State Legislature to enact the measure, i'n question. can be found in Entry No. 18.

We are further satisfied that the competency of the State

Leisla!1Jre can also be rested under Entry No. 20, of List III. which 1s as follows :-

. '.'20. Economic and social planning".

In Principles of Town & Country Planning by Lewis Keep! the scope of planning has been stated thus : '

(!} [19S9] Supp. lS.C.R. 748, 7S6.

(2) L.R. 74 I.A. 12.

"Planning has both social and economic aims.

Socially, successful Planning tends to make people's lives happier because it results in a physical environment which conduces to health, which allows convenient and safe passage from place to place, which facilitates social intercourse and which has visual attractiveness.

The economic results of good Planning also, of course, conduce to increased happiness, but not quite so directly.

A proper spatial relationship between the communities in a region and the constituent parts of a town, compactness of development, and an efficient arrangement of communication routes all result in human activities being carried on more efficiently and less wastefully, and thus increase wealth;"

In Corpus Jurl~ Secundum, Vol. 70, the word "planning" is stated to mean:

"In connection with municipalities, the term connotes a systematic development contrived to promote the common interest in matters embraced within the police power, with particular reference to the location, character, and extent of streets, squares, parks, and to kindred mapping and charting."

In Encyclopaedia Britannica, Vol. 5, p. 815 "City Planning" is stated to mean:

"the guidance of the growth and change of urban areas.

As such, it is aimed at fulfilling social and economic objectives which go beyond the physical form and arrangen; lent of buildings, streets, parks, utilities and other parts of the urban environment.

City planning takes effect largely through the operations of government and requires the application of specialized techniques of survey, analysis, forecasting and design.

Thus city planning may be described as a social movement, as a governmental function, or as a technical profession.

Each aspect has its own concepts, history and theories.

Together they fuse into the effort of modem society to shape and improve the environment within which increasing proportions of humanity spend their lives : the city."

We have already very elaborately referred to the various provisions contained in the Act; and we have also pointed out that the original Act of 1915 was passed with a view to regulate the development of certain areas with the general object of framing proper schemes for the healthy, orderly, deTelopment of the area in question and it is, with a view to achieve this purpose

CHHOTALAL v. MAKWANA (Yaidialingam, !.) 81

that a very elaborate procedure and machinery has been prescribed in the Act.

Therefore, the contention of learned counsel for the appellant that the State Legislature was not competent to enact the statute, in question, cannot be accepted.

The further contention of the learned counsel for the appellant, we have already pointed out, is that unguided and uncontrolled power has been vested in the authorities concerned in the matter of framing the scheme and that no principles have been laid down in the Act. as to how exactly an allotment has to be made of the lands in question to the original owners.

According to learned counsel, no principles have been laid down as to how exactly compensation, which is made payable to parties like his clients, is to be calculated.

On these grounds, counsel points out, the fundamental right& , i; uaranteed to his clients, under Arts. 14, 19 and 31 of the Constitution, have been infringed.

On behalf of the State, it is pointed out that in view of the Proclamation of Emergency which is in operation, the petitioners are not entitled to claim any fundamental rights under Art. 19 of the Constitution. Alternatively, it is pointed out that, in any event, having due regard to the various provisions of the Act and the object sought to be achieved, the Act in question can be considered to impose reasonable restrictions and therefore the legislation is valid under Art. 19(1)(f) of the Constitution.

We do not think it necessary to go into the question in this case, as to whether the petitioners are at all entitled to invoke Art. 19 of the Constitut10n.

On the asswnption that they are entitled to; we shall consider as to whether the Act, in question, can be sustained under Art. 19 ( 5), as imposing reasonable restrictions on the exercise of the rights conferred on the petitioners under Art. 19 (1 )( f).

The principles to be borne in mind in applying Arts. 14 and 19. of the Constitution are now wellsettled. A fundamental right to acquire, hold and dispose of prope1;1y. :an be. controlled by the State only by making a law 1:nposmg, m the mterest of the general public, reasonable restrictions on the exercise of the said right.

Such restrictions on the exercise of a fundamentl right shall not be arbitrary, or excessive, or beyond what a rcqmred in the interest of the general public.

The reasonableness of a restriction shall be tested both from substantive and procedural aspects. If an uncontrolled or unguided power. is. coerred,_ without any reasonable and proper standards or luruts bemg laid down in the enactment the statut~ ; nay be challenged as discriminatory.

Bearing thes~ principles

n mid, the qustion is whether the grievance of the petitioner>

m this regard,· 1s well-founded.

No doubt, it is seen that the petitioners, as stated earlier, have been allotted, under the Scheme, a smaller extent of land and they have also been directed to pay

SUPRBMB COURT REPORTS

[1967) 3 S.C.R.

certain amounts as their share of contribution.

But, having due regard to the scheme of the Act and the object sought to be achieved, such results are inevitable. At every stage, from the beginning to the end, we have already indicated, the Act and the Rules, make 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.

At all stages, very wide publicity is given, by the authorities concerned, in the matter of making known its proposals to the public and to the

owner~ of land, who are sought to be affected by the Scheme.

Provisions have been made for filing of objections and suggestions and the authorities being bound to take into account those objections and suggestions.

The procedure to be adopted by the Town Planning Officer, in the matter of giving his decisions, on the various aspects .referred to in s. 32, has been not only indicattd in that section, but also provided for, under the Rules.

It is also seen, from the affidavit of the petitioners themselves, that at all relevant stages, they have filed objections or suggestions before the appropriate authorities.

Nor are we impressed with the contention advanced on behalf of the Petitioners that there has been unfettered and arbitrary power vested in the Town Planning Officer in the matter of deciding the various points covered by s. 32 of the Act.

We have already indicatd thj\t the procedure to be adopted by the Town Planning Officer has been dealt with elaborately, by the relevant rules.

As to how exactly he has fo decide the particular matters, referred to

in els. (iii), (viii), (ix), (xi) and (xii) of s. 32(1) of the Act, have been indieated in the reference made by those sub-clauses to ss. 64, 65, 66, 67 and 68, respectively.

Those sections have also been referred to by us earlier, and they give very clear indication as to what matters are to be advi; rted to by him, when a matter has to be decided in accordance with those sections.

It is also seen from cl. (e) of s. 26(:<.) of the Act, that the primary intention in a draft Town Planning Scheme is to allot a plot to any owner dispossessed of land.

With reference to very few people, to w!)om it may not be possible to allot any land, s. 11 comes into operation.

Therefore, it will be seen that it is not as if the Town Planning Officer is left with any unguided discretion and arbitrary power in dealing with matters under s. 32 (1 ).

N1) doubt every decision given by the Town Planning Officer, under s. 32, 'is not appealale; but the important deciions !at are to be given by him, for mstance, under els. (v), (v1), (vm). (ix), (x) and (xiii)., are appealable un.dr s. 34 to a Board of Appeal, which is presided over by a Jud1c1al Officer of the standing of a District Judge.

The procedure to be <sdopted by that Board is also clearly indicated in the rules.

It is, after all these matters are gone through, that ultimately, the State Government sanctions the final Scheme.

Therefore, having due. regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Art. 19(5) of the Constitution.

The considerations referred to above will also

how that the grievance of the petitioners that Art. 14 is violated, is also not acceptable.

The petitioners, no doubt, urge that a very exhorbitant price is being fixed by the Town Planning Officer regarding the value of the reconstituted plots allotted to them.

Those are matters of detail, and they are covered by the provisions of the Act referred to above.

The petitioners, no doubt, make a grievance of their having lost a fairly large extent of land, which, according to them. amounts to deprivation. We are not satisfied that the petitioners' grievance is well-founded in this regard.

Though the petitioners may have originally owned larger extents of land, in difieren t areas, which may or may not be fit tor building purposes, there can be no controversy, that the reconstituted plots, though of a lesser area, have a higher value, as building sites, in view of th-.: various improvements and amenities provided under the Town Planning Scheme.

What parties, like the petitionc~. may h:1ve lost in actual area of lands, can certainly be considered to have been more than sufficiently compensated by the increased value

f the reconstituted plots.

There is no question of any deprivatton of property, therefore, so as to attract. Art. 31.

The petitioners make a grievance that they have to pay fairly large amounts by way of contribution to the Scheme.

No doubt, the petitioners' stand appears to be that the amount collected or dem:m?ed is really a tax, or fee, at any rate, which also the local authorny -has no right to ask for.

Here again, the matter will have to be approached in an entirely different way.

The amount that the petitioners have been asked to contribute is only towards the cot of the Scheme, which has to be incurred by the local authonty.

As to how exactly that contribution is to be worked out and the proportion in which the plots are to bear that burden.

hae. all been indicated in e Act.

Therefore, the liability of the peltt1oners to pay contribuuon has to be upheld, once we come to the conclusion that the Act, as a whole, will have to be sustained.

Both the contentions of the petitioners fail.

The writ petition 1s, accordingly, dismissed with costs of the respondents, one set.

V.P.S.

Petition dismissed.

MANEKLAL CHHOTALAL & ORS

M. G. MAKWANA & ORS

March 2, 1967

K. SuBBA RAo

c. SHAH

v. RAMASWAMI

Constitution of India

Arts. 14, 19 and 31

Seventh Schedule

s. 22

Bombay Town Planning Act, 1954

s. 23(1)

s. 28

s. 28(2)

s. 31

s. 32

s. 34

Arts. 14, 19(1)

Seventh Schedule

s. 32

Art. 14

Art. 19(5)

Art.

31

Art. 32

Constitution of India

B. Sen

N. Shroff

H. D. Banajee

R. Ganapathy Iyer

R. H. Dhebar

S. P.

G Nayyar

Purshottam Tricumdas

Vithalbhai Patel

. C. Mathur

J.B.

Dadachanji

Ravinder Narain

D. R. Prem

S. P. Nayyar

Vaidialingam

Art. 32

Bombay Town Planning Act, 1954

Bombay Act XXVII

Ahmedabad Municipal Corporation

August 20, 1959

s. 22(1)

September 3, 1959

November 16, 1959

December 2, 1959

January 9, G 1960

Usmanpur

June 13, 1960

s. 23

June 23, 1960

State of Gujarat

s. 28

s. 28(2)

s. 31

State of Gujarat

s. 67

s. 65

s. 66

s. 32(3)

s. 67

s. 65

s. 66

s. 67

s. 65

s. 66

s. 34

B. Sen

Seventh Schedule

Arts. 14, 19(1)(f)

H. D. Banajce

Seventh Schedule

Banajce

Ahmedabad Municipal CorporatiOn

Bombay Act I of 1915

s. 90(1)

April l, 1957

State of Gujarat

s. 2

Sections 3 to 17

Section 3

s. 3

Section 4

s. 7

s. 8

Section 9

Section 10

Section 11

s. 7

s. 4(1 )

Section 18

s. 18

Section 19

Section 20

Sections 21 to 30

s. 21

Section 22

s. 22

Section 23

Section 24

Section 25

Section 26

s. 26

s. 26

Section 27

s. 28

ss. 31 to 43

Section 32

s. 3211

Section 33

s. 32( 1)

s. 32

Section 34

City Civil Court, Bombay

Greater Bombay

s. 35

Section 3

s. 32(1)

Section 40

Section 43

ss. 44 to 61

Section 53

ss. 62 and 63

ss. 64 to 78

Section 64

SUPREME COURT REPORTS {1967] 3 S.C.ll

s. 32(1)

s. 64

s. 32(l)(viii)

s. 65

Section 66

s. 32(l)(ix)

s. 3

s. 67

s. 32(l)(xii)

s. 68

Section 71

s. 66

Section 73

Section 87

Section 3

s. 18

s. 66

Section 7

Chapters Il and III of the Act

s. 87

November 15, 1955

Bombay Town Planning Rules, 1955

s. 4

s. 22

s. 23

s. 25

Sen

Seventh Schedule

Seventh Schedule

Seventh Schedule

Seventh Schedule

L.R. 74 I.A. 12

Arts. 14, 19 and 31

Art. 19

Art. 19(1)(f)

Art. 19

Art. 19

Art. 19

Arts. 14 and 19

s. 32

s. 32

s. 32(1)

ss. 64, 65, 66, 67 and 68

s. 26(:<.)

s. 11

s. 32

s. 32

s. 34

Art. 19(5)

Art. 14

Art. 31


DEPUTY COMMERCIAL TAX OFFICER & ANR.

SHA SUKHRAJ PEERAJEE

April 17, 1967

[J. C. SHAH, S. M. SIKRI AND V. RAMASWAMI, JJ.]

Madras General Sales Tax Act IX of 1939---<1. 19(1), (2) (c)-Whether purchaser of business of 'dealer' liable for arrears of sales-tax due from dealer prior to amending Act I of 1959.

By a registered instrument dated October 5, 1956, the respondent purchased the business carried on by a dealer as defined in. the Madras General Sales Tax Act IX of 1939. The dealer had been assessed to 8'8les tax in respect of his turnover for the years 1948-49 and 1949-50 and had paid a part of the sales tax determined as due from him with the balance amount remaining in arrears. The sales tax authorities. attempted to recover the arrears from the respondent as the purchaser of the business and although he denied liability, his contention was overruled by the Deputy Commercial Tax Officer. His appeal to the Board of Revenue was also dismissed and he thereafter filed a Writ Petition under Art. 226 of the Constitutlon1 challenging the orders of the C.T.O. and the Board.

A Single Bench or the High Court dismissed the appeal but a Division Bench allowed a Letters Patent Appeal holding that Rule 21A of the Sales Tax Rules under which the arrears were sought to be recovered from the respondent, was illegal and ultra vlres the Act.

In the appeal to the Supreme Court it was contended, Inter a/ia, on behalf of the department (i) that Rule 21-A was valid having been made in exercise of the rule making power granted to the State Government under ss. 19(1) and 19(2)(c) of the Act whereby it could make rules for the assessment to tax under the Act of businesses which were discontinued or the ownership of which had changed; (ii) that further more under s. 10, the whole of the amount outstanding on the date of the default was charged on the property of the person liable to pay the tax; therefore, in the present case, the business which was transferred to the respondent was charged with the payment of sales tax and it was open to the sales tax authorities to proceed against the a!l'lets of the business for realillng the amount of sales tax due; and (iii) that upon a true construction of the registered Instrument dated October S, 1956, the respondent lll!dertoOk to pay all liabilities like sales tax Imposed in regard to the business.

HELD : dismissing ihe appeal :

(i) Rule 21-A was beyond the rule making power of the State Government either under s. 19(1) or s. 19(2)(c) and was therefore ultra vires the Act. [666 E-F]

Although by the amending Act I of 1959, an express provision was inserted by which the transfer.ee of the business was made liable for the arrears of sales tax due .from the transferor, there was no such provision in the Act during the period covered by the present case.

[664 DJ It is manifest that the person who purchases a business as a 'dealer' .can be essed to sales tax only in respect of his turnover and under the scheme of the charging provision of the Act, the purchaser of the business has nothing to do with the sales effected by the seller of the business.

The turnover in respect of such sales remains. therefore, the turn .. over of the transferor and not of the transferee.

[664 CJ

Although s. 19(2) (c) deals with the assessment to tax of businesses which are discontinued or the ownership of which has changed, in the context and background of other sections of the Act, the word "assessment" used in para 19(2) (c) does not include the. power of recovering tax assessed from a person other than the assessee. [664 F-0; 66S B.Cl

Blldridus Duga v. CJ., T., [1949] J.T.R. 209, 211; Chatluram v. C.l.T.

Biluir. 119471 F.C.R. 116; and Whitney v. Commi.isio11ers of Inland Revenue, 11926] A.C. 37, relied on.

(ii) S. JO of the Act as amended and sought to be relied upon had not come into force until October 8. 1956; in the present case the registered instrument by which the business was transferred to the respondent was dated October S, 1956 and the amended section therefore had no application. [666 Fl

(iii) It was not open to the State Government to rely on the lnstrumcn.t Inter v/vo.1 between the transferor and the transferee and to contend that there was any contractual obligation between tho transferee and the State Government who was not a party to tho instrument.

[667 B CJ

CrvrL APPELLATE JuR1so1cT10N : Civil Appeal No. 696 of 1966.

Appeal by special leave from the judgment and order dated Sl!ptembcr 13, 1963 of the Madras High Court in Writ Appeal No.

10 of 1962.

P. Ram Reddy and A. V. Rangam, for the appellant.

E R. Gcmapathy l, yer, for the respondent.

The Judgment of the Court was delivered by Ramaswami, J, The question of law involved in this appeal is whether the purchaser of business carried on by a dealer as defined in the Madras General Sales Tax Act, 1939 (Madras Act F No. lX of 1939), hereinafter called the 'Act', can be made liable for arrears of sales-tax due from the dealer in respect of transactions of sale which took place before the transfer of the business under Rule 21-A of the Rules framed in exercise of the powers conferred on the State Government by s. 19 of the Act.

The respondent purchased, by a registered instrument dated G October 5, 1956, the business carried on by one Purushottam Raju under the name-All India Trading Company. Purushottam Raju was the sole proprietor of the business and had been assessed to sales-tax in respecu of his turnover for the years 1948-49 and 1949-50. The assessee paid some amounts towards sales-tax thus

~~'.e~~n~-Ob~r t~~%s~%~i~dR~~~l~~e-sfof i5l~:i~ 4~~ U Sales-tax authorities attempted to recover the arrears of tax from the respondent as the purchaser of the business. The respondent

denied liability to pay sales-tax but his contention was over-ruled by the Deputy Commercial Tax Officer. The respondent appealed to the Commercial Tax Officer as well as to the Board of Revenue, but the appeals were dismissed. The respondent thereafter moved the Madras High Court under Art. 226 of the Constitution for the issue of a writ in the nature of certiorari to quash the orders of the Commercial Tail: Officer and the Board of Rev!nue. Ganapatia Pillai, J. who heard the petition dismissed it. The respondent took the matter in appeal under the Letters Patent. The Division Bench consisting of S. Ramachandra Iyer, C.J. and Ramakrishnan, J. reversed the judgment of the Single Judge, holding that Rule 21-A of the SalCs-T~ Rules was illegal and ultra vires and the respoadent was not liable to pay the sales-tax due from his predecessorin-title, Purttshottam Raju.

This appeal is brought, by special leave, from the judgment of the Division Bench of the Madras High Court dated September 13, 1963 in, Writ Appeal No. 10 of 1962.

Rule 21-A was framed by the State Government under the rulemaking power granted to it under s. 19(1) and (2) of the Act.

Rule 21-A reads as follows:

"When the ownership of the business of a dealer liable to pay the tax under the Act is entirely transferred, any tax payable in respect of such business and remaining unpaid at the time of the transfer shall be recoverable from the transferor or the transferee as if they were the dealers liable to pay such tax, provided that the recovery .from the transferee of the arrears of taxes due prior to the date of the transfer shall be only to the extent of the value of the business he obtained by transfer. The transferee s)\all also be liable to pay tax under the Act on the sales of goods effected by him with effect from the date of such transfer and shall within thirty days of the transfer apply for registration or licence, as the case may be, unless he already holds a certificate of registration or licence, as the case may be." Section 19(1) and 19(2)(c) are to the following effect:

"19. (1) The State Government may make rules to carry out the purposes of this Act. . (2) In particula~ and without prejudice to the generality of the foregomg power, such rules may provide for-· ............ ·.· ......................... .

(c) the assessment to tax u, nder this Act of businesses which are discontinued or the ownership .of which has changed;"

SUPRBMB COURT RBPORTS

(1967) 3 S.C.K.

The first question to be considered in this appeal is whether Rule 21-A is intra vires of the power of the State Government under ss. 19(1) and (2) of the Act. Section 3(1) of the Act is the charging section. It imposes a liability to pay sales-tax on every dealer for each year, and the tax is to be calculated on his total turnover for that year. Section 2(b) of the Act defines a "dealer" as "a person who carries on the business of buying, selling • • . •. • . goods". The word "turnover" is defined in s. 2(i) of the Act to

. mean "the aggregate amount for which goods are either bought or sold l!>y a dealer, whether for cash or for deferred payment or other valuable consideration .... ".

It is manifest that a person who ' purchases a business as a 'dealer' can be assessed to sales-tax only in respect of his turnover and under the scheme of the charging provision of the Act the purchaser of the business has nothing to do with the sales effected by the seller of the business. The turnover in respect of such sales remains therefore the turnover of the transferor and not of the transferee. By the amending Act of 1959 (Act I of 1959) an express provision was inserted by which the transfer.ee of the business was made liable for the arrears of salestax due from the transferor. But there is no such provision in the Act for the period with which we are concerned in thepresent case.

The question is whether the State Government has authority under its rule-making power under s. 19 of the Act to create a legal fiction by which the transferee of the business is constituted as the dealer liable to pay the tax in respect of the turnover of the transferor. On behalf of the appellants Mr. Ram Reddy suggested that the State Government has power under s. 19(1) and 19(2) (c) of the Act to frame the impugned rule. We are unable to accept this. argument as correct. Section 19(1) of the Act empowers the State Government to make rules to carry out the purposes of the Act, but the section cannot be utilised to enlarge the scope of s. 1 O regarding recovery and payment of tax from some other person other than a "dealer" under the Act. We also consider that the State Government has no authority under s. 19(2)(c) of the Act to enact the rule.

Section 19(2)(c) deals with the assessment to tax of businesses which are discontinued or the ownership of which has changed. It is true that the word "assessment" in the scheme of sales-tax and income-tax J.egislation is a term of varying import.

The word is used sometimes to mean the computation of income; sometimes the determination of the amount of tax payable, and sometimes the whole procedure laid down in the Income-tax Act for imposing liability on the tax-payer. As the Judicial Committee, however, said in Badridas Daga v. C.l.T.( 1), the words 'assess' and 'assessment' refer primarily to the computation of the amount of income. In Chatturam v. C.I.T. Bihar(2 ), the Federal Court pointed out, relying upon the decision of the House of Lords in

(I) [1949] l.T.R. 209, 211.

(2) [19471 F.C.R. 116.

I ' ,

Whitney v. Comm1'ssioners of Inland Revenue('), that the liability to tax does not depend upon assessment. The liability is definitely created by ss. 3 and 4 of the Income-tax Act which are the charging sections and the assessment order under s. 23 only quantifies the liability which has already been definitely and finally created by the charging sections and the provision in regard to assessment relates only to the machinery of taxation. In our opinion, the principle of these decisions applies to the interpretation of the Act in the present case.

We consider that, in the context and background of other sections of the Act, the word 'assessment' used in s. 19(2)(c) does not include the power of recovering tax assessed from a person other than the assessee. It follows therefore that Rule 21-A is beyond the rule-making power of the State Government either under s. 19(1) or s. 19(2)(c) of the Act. It was then submitted by Mr. Ram Reddy that Rule 21-A may be supported by the language of s. 10(1) of the Act which states:

"10. Payment and recovery of tax.-(1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice.

If default is made in paying according to the notice of assessment, the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this Act." It was contended that under this section the whole of the amount

m1tstanding on the date of default is charged on the property of the person liable to pay the tax. In the present case, the business which was transferred to the respondent was hence charged with the payment of sales-tax and it was open to sales-tax authorities to proceed against the assets of the business for realising the

amout of sales-tax due.. In our opinion, there is no justification for this argument. Section 10 of the Act as it stood before the Madras General Sales-tax (3rd amendment) Act, 1956 (Act No.

XV of 19 5 6) read as follows :

"The tax assessed under this Act shall be paid in such anner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice. In default of such payment, the whole of the amount then remaining due may be recovered as if it were an arrear of land revenue."

This section was amended by s. 8 of the Madras General Salcstax (3rd amendment) Act, 1956 which reads as follows:

(I) [1926] A.C. 37.

"Substitution of new section for section IO in Madras Act IX of 1939.-For section 10 of the principal Act, the following section shall be substituted, namely:-

"10. Payment and recovery of tait.-( 1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified fn the notice of assessment, not being less than fifteen days from the date of service of the notice.

If default is made in paying according to the notice of assessment, the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this Act. ....... :-...... ; "

'~3-~ ·-:!:.

The 3rd Amendment Act, 1956 received the assent of the President on October 1, 1956 but it was published in the Madras Gazette on October 8, 1956. Section 5 of the Madras General Clauses Act (Madras Act No. 1 of 1891) provides as follows:

"5. (I) Where any Act to which this Chapter ap plies is not expressed to come into operation, on a particular day, then, it shall come into operation on the day on which the assent thereto of the Governor, the Governor-General or the President, as the case may require, is first published in the Official Gazette."

In the present case, the Act is not expressed to come into oper11tion on any particular date, but as it was published in the Madras Gazette on October 8, 1956, the Act came into operation on that date and not before. In the present case, the registered instrument by which the business was transferred to the respondent is dated October 5, 1956 and the amending Act has therefore no application.

We accordingly reject the argument of the appellants on this aspect of the case and hold that Rule 21-A is ultra vires of the rule-making power of the State Government under the Act.

It was next argued on behalf of the appellants that upon a true construction of the registered instrument dated October 5, 1956

the respondent undertook to pay not only Sch. I liabilities but also other liabilities like sales-tax imposed in regard to the business. It was, however, disputed by Mr. Ganapathy Iyer on behalf of the respondent that there was any undertaking on the part of the res- H pondent to discharge the liabilities in regard to arrears of sales-tax.

But!)ven on the assumption that the respondent undertook to pay the arrears of sales-tax due by the transferor, it does not follow

A that there is a liability created inter se between the State Govern menL on the one hand and the transferee on the other hand. To put it differently, it is not open to the State Government to rely . on the instrwnent inter vivas between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the State Government who is not a party B to the instrument. We accordingly reject the argument of the apc

pellants on this aspect of the case also.

For these reasons we hold that the judgment of the Division Bench of the High Court dated September 13, 1963 is correct and this appeal must be dismissed with costs.

R.K.P.S.

Appeal dismissed.

DEPUTY COMMERCIAL TAX OFFICER & ANR

SHA SUKHRAJ PEERAJEE

April 17, 1967

C. SHAH

S. M. SIKRI

V. RAMASWAMI, JJ.

Madras General Sales Tax Act

Tax Act IX of 1939

Art. 226

C.T.O.

Supreme Court

ss. 19(1) and 19(2)(c)

s. 10

s. 19(1)

s. 19(2)(c)

s. 19(2)

Madras High Court

P. Ram Reddy

A. V. Rangam

E R. Gcmapathy

Ramaswami

s. 19

October 5, 1956

Purushottam Raju

All India Trading Company

Art. 226

Ganapatia Pillai

S. Ramachandra Iyer

Ramakrishnan

Purttshottam Raju

September 13, 1963

s. 19(1)

Section 19(1) and 19(2)(c)

SUPRBMB COURT RBPORTS

(1967) 3 S.C.K.

ss. 19(1)

Section 3(1)

Section 2(b)

s. 2(i)

s. 19

Ram Reddy

s. 19(1) and 19(2)

Section 19(1)

s. 1

s. 19(2)(c)

Section 19(2)(c)

Income-tax Act

Chatturam

ss. 3 and 4

Income-tax Act

s. 23

s. 19(2)(c)

s. 19(1)

s. 19(2)(c)

Ram Reddy that Rule

s. 10(1)

Section 10

s. 8

section 10

Amendment Act, 1956

October 1, 1956

October 8, 1956

Section 5

General Clauses Act

Ganapathy Iyer