TaxTMI 
TaxTMI 
TaxTMI 
1987 (1) TMI 483
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.... suppose, must yield to modern societal requirements. Smoking Chimneys produce much needed goods. High-rise buildings save much-scarce space. They have a place in the scheme of things. But where, how, to what extent, at what cost, are the questions raised by some aggrieved citizens of Bangalore. They want congestion to be prevented, population density to be controlled, lung spaces to be provided where people can breath, existing recreational facilities to be preserved and improved, pollution and health hazards to be removed, civic and social amenities to be provided etc. All these require a balanced use of available land. It is with that object that the Mysore Town and Country Planning Act was enacted in 1961 and it is with the interpretation of some of the provisions of that Act that we are concerned in these appeals. The problem and the pain have been well brought out by the Chairman of the Bangalore Urban Arts Commission (4th respondent before the High Court) in the Chairman's response to an editorial in a local newspaper. It is extracted in the Additional Statement filed in the High Court by the Writ Petitioners. He says, "when we speak of saving Bangalore's skyline and its ch....
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....to help the proletarian office-goer or house-seeker. It will serve only the big-time builder, the high-spending rich and--last but not least--the fast-buck chasing wheeler-dealers and busybodies mentioned above. "Now that the State Government has announced a clear policy in this behalf, there is no reason why we should not expect the best. This Commission has made its own contribution to the formulation of a new set of building bye-laws which aim at the much needed regulation--on fully modern lines--of this City's future growth, and which leave minimum scope for corruption. We hope that these will be adopted soon. We look forward to a new approach and a new era-free from the stench of corruption. We hope that these will be adopted soon. We look forward to a new approach and a new era-free from the strench of corruption, innuendoes and loose talk of "motives", and characterised by future-thinking. After all, we have the City Beautiful because of the future thinking and hard work of the planners and administrators." Raj Mahal Vilas Extension is a sparsely developed area of the city of Bangalore which the Bangalore Improvement Trust Board desired to develop under the provisions of th....
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.... to restrain the present appellants from constructing the eight-floor buildings and to direct them to demolish the structures already put up. There was also a prayer to require the Bangalore Urban Arts Commission to recommend to the State of Karnataka against the construction of high-rise buildings in any of the existing extensions of Bangalore. Writ Petition No. 3386 of 1981 out of which arises Civil Appeal No. 2780 of 1982 and Writ Petition No. 3387 of 1981 out of which arises Civil Appeal No. 2781 of 1982 were filed on 25.2.81. In Writ Petition No. 3386 of 1981 an interim order was initially refused by a learned Single Judge but on appeal a Division Bench of the High Court granted an interim order restraining the appellants in Civil Appeal No. 2780 of 1982 from raising further construction. However, in the special leave petition filed by the appellants the order of the learned Single Judge was restored subject to an undertaking given by the appellants that in the event of the original writ petition being allowed and the construction being required to be pulled down, the appellants will not raise any objection and will not plead the construction during the pendency of the writ pe....
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....velopment Plan and the Zonal Regulations appended thereto promulgated under Section 13(4) of the Karnataka Town and Country Planning Act and take all consequential action in accordance with law. Shri Cooper, learned counsel for the appellants urged that publication of the Outline Development Plan and the Regulations in the prescribed manner, that is, in the Official Gazette was mandatory under Section 13(4) and that failure to so publish the Outline Development Plan and the Regulations rendered them ineffective. The licences already granted to the appellants could not be cancelled or directed to be modified so as to be in accord with the Outline Development Plan and the Regulations. It was further urged that the Regulations were distinct from the Outline Development Plan and that in the case of the Regulations, there was no attempt whatever at publication. It was submitted that the High Court was in error in holding that Section 76J cured whatever defect there was in regard to the publication of the Plan and the Regulations. It was said that the High Court was also in error in holding that the Outline Development Plan and the Regulations became effective as soon as they were appro....
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....Area' is defined by Section 2(6) to mean the area declared to be a local planning area under the Act in the case of the local planning area comprising the city of Bangalore. 'Planning Authority' is defined to mean the Planning Authority constituted under the Act. Section 2(9) defines 'prescribed' to mean prescribed by rules made under the Act. Section 2(11) defines 'regulations' to mean the Zonal Regulations governing land-use made under the Act. Chapter III of the Act deals with Outline Development Plan (O.D.P.). Section 9(1) empowers the Planning Authority to prepare and publish in the prescribed manner an Outline Development Plan for the area within its jurisdiction and submit it to the State Government for provisional approval. Section 9(4) prescribes that a copy of the O.D.P. sent to the State Government under sub-section(1) shall be kept open for inspection by the public at the head office of the Planning Authority before carrying out a survey for the purpose of preparing an O.D.P. for such an area. A Planning Authority is required by Section 10 to make a declaration of its intention to prepare such plan and to despatch a copy of the same to the State Government for publicat....
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....on for developing any land can be obtained from the Planning Authority; (iv) a report of the stages by which it is proposed to meet the obligations imposed on the Planning Authority by such a plan; (v) an approximate estimate of the cost involved in the acquisition of lands reserved for public purposes." "S.13. Approval of the Outline Development Plan--(1) On receipt of the Outline Development Plan with the particulars referred to in Section 12 from the Planning Authority under sub-section (1) of Section 9, or after such plan and particulars are prepared and published under subsection (2) of Section 9 the State Government after making such modifications as it deems fit or as may be advised by the Director, shall return through the Director, the plan and the particulars to the Planning Authority, which shall thereupon publish, by notification, the plan and the particulars inviting public comments within one month of such publication. (2) If within one month of the publication under subsection (1) any member of the public communicates in writing to the Planning Authority any comments on the plan and the regulations, the Planning Authority shall consider such comments and resubmit....
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....es relating to publication. Rule 32 provides for "publication of Outline Development Plan under sub- 1' According to Hindu tradition the waters of the Ganga purify, cleans the sins and remedy all insufficiencies. section (1) and sub-section (2) of Section 9". It prescribes that the publication shall be made by making a copy of the Plan available for inspection and displaying a notice in Form II, (a) at the office of the Planning Authority and (b) at such other places as may be specified by the Planning Authority. The Planning Authority is also required to publish a notice in Form II in the Official Gazette and in one or more newspapers. The publication under Section 9(2) is also required to be made in the same manner except that reference to Planning Authority is to be construed as a reference to the Director. Rule 33 provides for 'Publication of Outline Development Plan and Regulations under Section 13(4)' and stipulates that the Outline Development Plan and the Regulations as approved by the State Government under subsection (3) of Section 13 shall be published in the Official Gazette. Form 11 referred to in Rule 32 is as follows: FORM NO. II (Rule 32) NOTICE OF PUBLICATION ....
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.... Town and Country Planning Act, 1961 (Mysore Act 11 of 1963). The said Plan has been provisionally approved by the Government of Mysore as per Section 13(1) of the above Act. A copy of the above approved plan and the report are available for inspection at the office of the Planning Authority in Seshadri Road, Bangalore City during office hours. If there be any objection or suggestion in respect of the Outline Development Plan it should be lodged within 30 days from the date of publication of this notice in the Gazette. Every such objection or suggestion should either be presented in the office of the Planning Authority or sent by registered post to the Planning Authority. CHAIRMAN PLANNING AUTHORITY" It appears that in response to the invitation to file objections, as many as 600 representations and objections were received from individuals, institutions, associations, Chambers of Commerce etc. The Outline Development Plan was finally approved by the Government and a notification to that effect was published in the Mysore Gazette dated 13.7. 1972 in the following terms: "OFFICE OF THE CHAIRMAN, PLANNING AUTHORITY BANGALORE CITY PLANNING AREA, BANGALORE-9. Dated, 27th June 197....
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....ublished or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient. * In the present case Section 13(4) has prescribed the mode of publication of the Outline Development Plan and the Regulations. It requires the Outline Development Plan and the Regul....
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.... 1969 (1) Andhra Weekly Reporter 77. and particulars to be published by notification in the Official Gazette, with a view to invite comments from the public. What was published in the present case under Section 13(1) was also a notice in Form No. II and not the whole of the Plan and particulars. Such publication evoked considerable public response. As many as 600 representations from individuals and institutions were received. That is why we said that everyone concerned, that is, the Government, the Director, the Planning Authority and the public, individual and institution alike, thought that publication of a notice in the Gazette inviting the attention of the public to the display and the availability for inspection of the Plan and particulars was all that was contemplated by the provisions providing for publication. We do not think that there is any reason or justification for us to adopt an interpretation which departs from common understanding of the Act and the Rules. Shri Cooper invited our attention to Shalagram Jhajharia v. National Co. Ltd. & Ors., [1965] 35 Company Cases 706 and Firestone Tyre & Rubber Co. v. Synthetics & Chemicals Ltd. & Ors., [1971] 41 Company cases ....
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....eference as the 'Ganga' clause. Provisions similar to s.76J are found in several modern Acts and their object is to put beyond challenge defects of constitution of statutory bodies and defects of procedure which have not led to any substantial prejudice. We are inclined to agree with the High Court that a defective publication which has otherwise served its purpose is not sufficient to render illegal what is published and that such defect is cured by Section 76J. The High Court relied on the two decisions of this Court Bangalore Woollon, Cotton & Silk Mills Co. Ltd. Bangalore v. Corporation of the City of Bangalore [1961] 3 S.C.R. 707 and Municipal Board, Sitapur v. Prayag Narain Saigal & Firm Moosaram Bhagwandas, [1969] 3 S.C.R. 387. In the first case objection was raised to the imposition of octroi duty on the ground that there was failure to notify the final resolution of the imposition of the tax in the Government Gazette as required by Section 98(2) of the City of Bangalore Municipal Corporation Act. A Constitution Bench of the Court held that the failure to publish the final resolution in the Official Gazette was cured by S.38(1)(b) of the Act which provided that no act done ....
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....lopment Plan and the Regulations are not distinct from each other. The regulations are born out of the Plan and the Plan thrives on the Regulations. The Plan is the basis for the Regulations and the Regulations are what make the plan effective. Without the Regulations, the plan virtually becomes a dead letter. The reference in the four clauses of Section 13, whenever the word 'Plan' or the 'Outline Development Plan' is used, is to the core plan, without the particulars and the Regulations and not the whole of the Outline Development Plan which must include the Regulations. What the different phraseology is meant to convey is to emphasise the different parts of the Plan which have to be forwarded to the Government, considered by the Government made available for inspection by the public, as the case may be and to the extent necessary. Merely because the words "and Regulations" are added to the word 'Plan', the Regulations are not to be treated as not constituting part of the Plan even as when a building is sold along with the fixtures, it does not mean that the fixtures are not treated as part of the building. Shri Cooper drew the distinction between the Plan and the Regulations to ....