JASWANT SINGH MATHURA SINGH AND ANR. versus AHMEDABAD MUNICIPAL CORPORATION AND ORS ..

Citation: [1991] SUPP. 1 S.C.R. 226 · Decided: 01-10-1991 · Supreme Court of India · Bench: RANGANATH MISRA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
JASWANT SINGH MATHURA SINGH AND ANR. 
v. 
AHMEDABAD MUNICIPAL CORPORATION AND ORS .. 
~ 
OCTOBER 1, 1991 
B 
[ RANAGNATH MISRA, CJ., KULDIP SINGH AND 
K. RAMASWAMY, JJ.] 
Bombay Town Planning Rules, 1955: Rules 21(3) and (4). 
c 
Town Planning Scheme-Procedure to be followed by Town Planning 
j.___ 
Officer-Compliance with Rule 21(3) and (4) held mandatory-Non-com-
pliance vitiates the validity of the Town Planning Scheme- Tenant or sub-
tenant in possession of a tenement in the Town Planning Scheme-Held a 
person interested and entitled to notice under sub-rule (3) and opportunity 
under sub-role (4)-Purpose of Rule 21(3) and (4)-Explained. 
D 
Principle of 'Waiver' explained. 
Administrative Law - Natural justice. 
'f 
E 
Deprivation of property - lniposition of liability - Prior notice and 
opportunity should be provided to affected person -
Rules 21(3) and (4) 
of the Bombay Town Planning Rules, 1955 subserve the principle of Natural 
Justice and the basic concept of fair and just procedure. 
F 
'Shall' - Connotation of - Whether mctndatory or directory - Mean-
~ 
ing shall be ascertained in the light of legislative intent, the context in which 
it is couched, the consequences it prod~ces and the purpose it seeks to serve. 
The appellant was in possession of a plot as a tenanL Pursuant to a 
Town Planning Scheme framed by the respondent-Corporation under the 
G 
Bombay Town Planning Act, 1955 the said plot was re· constituted I.e. the 
plot was altered by the making of the Town Planning Scheme. The 
respondent was injuriously affected by the said scheme because it has the 
effect of terminating his possession and adversely affected his business in 
y 
the demised premises. However, before finalising the scheme the· Town 
Planning Officer neither issued special notice to the respondent as 
H required under sub-rule (3) nor provided him an opportunity as provided 
226 
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JASWANT SINGH v. MUNICIPAL CORPN. 
'227 
under sub-rule (4) of Rule 21 of the Bombay Town Planning Rules, 1955. A 
The appellants filed a civil suit challenging the action and ,the Trial Court 
Issued a permanent injunction restraining the respondent-Corporation 
from rec~nstituting the plot until due procedure was followed. 
On appeal by the Corporation a Single Judgt! of the High Court 
B 
allowed the appeal and set aside the decree of the Trial Court and 
dismissed the suit. The Single Judge followed the decision of the Full 
Bench in Dungarlal Harichand v. State of Gujarat & Ors. (1976) 17 G.L.R., 
1152 holding that the appellants were not entitled to special notice under 
sub-rule.(3) and opportunity under sub-rule (4) and that non-compliance 
with the said rule does not vitiate the Planning Scheme. The decision of the c 
Single Judge was confirmed in Letter Patent appeal by the Division Bench 
or the High Court. 
In tenant's appeal to this Court it was contended on behalf of the 
Respondent-Corporation that (i) compliance with sub-rule 21(3) & (4) was 
not mandatory; (ii) Since sub-rule 21(3) is only an additional advantage it D 
is dispensable and could be waived; (iii) the framing of the Town Planning 
Scheme is for the benefit of the residents or the Local authority as an 
amenity provided therein to the general public i.e. construction or General 
Post Offi'--e, the interest of the general public outweighs the individual 
Interest, Therefore, sub-rule 21(3) is not mandatory; (iv) the use of the E 
word 'shall' in rule 21(3) may be construed as directory and not as 
mandatory. 
Allowing the appeal,,thls Court, 
HELD: 1. Under Section 105 ,of Transfer of Property Act, a lease F 
· creates right or an Interest in enjoyment of the demised property and a 
' tenant or a sub-tenant is entitled to remain in possession of the demised 
property until the lease is duly terminated and eviction takes place ln 
accordance with law. Therefore, a tenant or a sub-tenant in possession of a 
tenement in the Town Planning Scheme is a person interested within the G 
meaning of Rules 21(3) & (4) of the.Rules. But he must be in possession of 
the property on the crucial date i.e. when the town plan scheme is notified 
in the official gazette. Every owner or tenant or a sub-tenant, in possession 
on that date alone shall be entitled to a notice and opportunity. 
Accordingly, appellants are entitled to notice under sub-rule (3) and a 
H 
228 
SUPREME COURT REPORTS 
[1991) SUPP. 1 S. C. R. 
A 
reasonable opportunity under sub-rule (4) thereof.
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