JUDGMENT
Bhatt, J.
1. This is a petition by an Association, registered under the Bombay Non-Trading Corporations Act. The Respondent No. 1 herein is the Ahmedabad Municipal Corporation and the Respondent No. 2 is the State of Gujarat. The petitioner-Association has various premises constructed on a plot situated on the Ashram Road, Ahmedabad. The petitioner-Association had submitted its first plan for construction on that plot and that plan was sanctioned on 1-2-80 and the due commencement certificate was given. Then the revised plan was submitted on 23-3-81, which was rejected 23-6-81 and the second revised plan submitted on 27-12-82 claiming 1-40 F.S.I. (Floor Space Index) was also rejected on 17-2-83. The petitioner alleged that the revised plans had been rejected on the sole ground that the available F.S.I. was 1 and not 1-40 as claimed. The petitioner had, therefore, ultimately filed this petition for the following prayers to be found at page 32:
(b) this Hon’ble Court may be pleased to declare the notification dated 12th August 1983 of the Government of Gujarat under the Gujarat Town Planning and Urban Development Act, 1976 making provision of F.S.I, of 1 in respect of buildings abutting on the Ashram Road on and with effect from 16th September 1983 as ultra vires the provisions of Gujarat Town Planning and Urban Development Act, 1976, null, void and of no binding effect;
(c) this Hon’ble Court may be pleased to declare that in view of the provisions of Gujarat Town Planning and Urban Development Act, 1976 and the other relevant provisions, the permissible F.S.I, in respect of buildings abutting on Ashram Road cannot be less than 1-33 as operated in the final development plan for the period 1965 to 1975;
(d) this Hon’ble Court may be pleased to declare that in respect of city area limits the provisions of regulations of Ahmedabad Urban Development Authority will apply and consequently the Ahmedabad. Municipal Corporation authorities cannot exercise any of its powers with regard to the sanctioning of the plan on the basis of any F.S.I, other than the one suggested by AUDA;
(e) this Hon’ble Court may be pleased to hold that the action of the State Government in issuing notification dated 12th August 1983 fixing F.S.I, of 1 in Commercial Zone of Ashram Road with effect from 16th September 1983 on a proposal submitted in January 1976 without inviting any objections, is clearly illegal, null and void and of no effect;
(f) this Hon’ble Court may be pleased to direct the Ahmedabad Municipal Corporation to examine the question of permissible F.S.I, on Ashram Road afresh and submit its proposals to the State Government and thereafter only after inviting the objections the State Government can decide as to what should be the permissible F.S.I. on Ashram Road;
(g) this Hon’ble Court may be pleased to declare that in any event in respect of the period from January 1976 till 16th September 1983, the permissible F.S.I, on Ashram Road cannot be less than 1.33 and all existing permissions sought should be granted by the Corporation and/or its officers on that basis;
(h) this Hon’ble Court may be pleased to direct the State Government and the Ahmedabad Municipal Corporation to act upon the promises and/or assurances held out from time to time by the resolutions and/or by public speeches made with regard to the F.S.I. and also to act upon the opinions expressed by expert bo thes with regard to the permissible F.S.I, on Ashram Road;
(i) this Hon’ble Court may be pleased to hold that the State Government and/or the authorities of the Ahmedabad Municipal Corporation are stopped in law and on facts in contending that the permissible FSI on Ashram Road for the period from January 1976 till 16th September 1983 should be 1 and not 1.33, 1.5 or 2.3;
(j) this Hon’ble Court may be pleased to direct the State Government and/or the Ahmedabad Municipal Corporation to adopt reasonable standard in the matter of relaxation of FSI for buildings situate on Ashram Road, and not to adopt discriminatory and/or arbitrary standards;
2. In older to understand the controversy, we have to travel back into the history of a few decades. It is well known that with industrial revolution, there was heavy rush into urban areas. Introduction of the factory system into methods of manufacture, brought about a great exodus of population from villages into the manufacturing centres leading to congestion and overcrowding and cheap and in sanitary dwellings were hurriedly erected often in the vicinity of factories. Erection of these dwellings was generally subject to little supervision or control by local authorities and the new dwellings were built in close and unregulated proximity with little or no regard to the requirements of ventilation and sanitation. Necessity to make a planned development of these new colonies for housing the influx of population in sanitary surroundings was soon felt. To provide for planned and controlled development and use of land in urban areas, the Town Planning Legislations were envisaged. In the erstwhile State of Bombay, the Bombay Legislature had enacted Act No. 1 of 1915 with a view to remedy the situation. Acting on that 1915 Act, the local authority of Ahmedabad, which was a borough municipality then, had passed a resolution on 18-4-1927 declaring its intention to make a Town Planning Scheme and then there were town planning schemes mooted prepared and sanctioned for different areas. The lands with which we are concerned in this petition also were covered by a town planning scheme, known as T.P. Scheme, Ellisbridge, No. 3 finalised on 15-3-1945. Obviously, it was under the 1915 Act. At that time, there was no such idea in the mind of the Legislature to have the develop, ment of the entire area on particular lines, but different parcels of areas out of the total area of the local authority were taken up and schemes were made. The Ashram Road of the present days is covered in that T.P. Scheme Ellisbridge No. 3. The said scheme continued to hold the field when the Bombay Town Planning Act, 1954, being Bombay Act No. 27 of 1955 came to be enacted by the Legislature. That 1915 Act was repealed by Section 90(1) of this 1954 Act, but not withstanding the repeal, the final scheme sanctioned by the State Government continued to be in force and there is no controversy about it.
3. For the first time in the year 1955, when that 1954 Act came to see the light of the day, two different facets of development had come to be envisaged. Chapter II of that 1954 Act mooted out development plan, in the entire area within the jurisdiction of the local authority Section 7 of that Act shows what such a development plan should contain. To put it broadly, the plan was to envisage proposals for designating the use of the land for different purposes, like residential; industrial; commercial and agricultural; proposals for designation of land for public purposes such as parks, play-grounds, etc., proposals for reads and highways; proposals for the reservation of land for the purposes of the Union and State and any local authority or any other authority established by law in India. A close look at Section 7 of that 1954 Act once for all makes it clear that the development plan was for the entire area and it was not contemplated to deal with any individual plots or plotting out of any lands or any restrictions to be placed on buildings on different plots. This is to be emphasised for the reasons that will be evident when I go to the discussion of various problems. It appears that it is so from the very nature of things. Under that very 1954 Act, Chapter III then deals with schemes. Section 18 of that Act deals with making of town planning schemes. Making of a town planning scheme is not obligatory, but making of a development plan is obligatory for a local authority as per the mandate of the Legislature contained in Section 3 of the Act. Now this scheme firstly has to keep regard for the proposals in the development plan, if any. Sub-section (2) of Section 18 of that 1954 Act has got Clause (j) which is reproduced below:
(j). The imposition of conditions and restrictions in regard to the open space to be maintained about buildings, the percentage of building area for a plot, the number, size, height and character of buildings allowed in specified areas, the purposes to which buildings or specified areas may or may not be appropriated, the sub-division of plots, the discontinuance of objectionable users of land in any area no reasonable periods, parking space and loading and unloading space for any building and the sizes of projections and advertisement signs.
So, it is evident that as long as that 1954 Act hold the field, the imposition of conditions and restrictions in regard to open space to be maintained about buildings, the percentage of building area for a plot, the number, size, height and character of buildings allowed in specified areas, etc. were the things to be looked to while making the scheme. There is no provision like the above-mentioned Clause (j) in the provisions dealing with development plan. Section 7, as said by me above, deals with the contents of the development plan and in that Section 7, there is no reference to any provision like above-mentioned Clause (j) of Section 18 of the 1954 Act. It is, therefore, held by me that an authority making the development plan under the 1954 Act had no authority at law to provide for imposition of any conditions and restrictions in regard to open space to be maintained about buildings or the percentage of building area for a plot, etc. which are the concern of the Town Planning Scheme and not of the development plan under Section 7 of that Act. The importance of this aspect will be referred to at the proper stage when I go to the consideration of the merits.
4. In this very strain, however, an analogous provision of the Gujarat Town Planning and Urban Development Act, 1976 is to be seen. Section 12 of the 1976 Act deals with the contents of the draft development plan. There, there is Clause (m) which deals with provision for controlling and regulating the use and development of land within the development area including imposition of conditions and restrictions in regard to the open space to be maintained for buildings, the percentage of building area for a plot, the location, number, size, height, number of storeys, etc. If we compare this Clause (m) of Section 12(2) of the 1976 Act with Clause (j) of Section 18 of the 1954 Act, we would at once note that while making a development plan under that 1954 Act, the local authority preparing the plan had no business or jurisdiction to deal with any imposition of conditions and restrictions in regard to open space to be maintained for buildings, the percentage of building area, for a plot, etc. This is also to be borne in mind because I am required to decide at the proper stage whether the local authority preparing the development plan under the 1954 Act can conceivably make provision for these items, which were left by the Legislature while passing 1954 Act in the realm of the Town Planning Scheme.
5. As said above, the town planning scheme made under 1915 Act in respect of this area continued as if it was made under the 1954 Act. Again it is to be borne in mind that when a final scheme is made, the town planning scheme has effect as if it is part and parcel of that Act (see Section 51(3) of the 1954 Act and Section 65(3) of the 1976 Act). This is also to be emphasised that the scheme is the law of the land while development plan is a proposal mooted out for the development of the entire area for the purpose of looking to the overall development of the total area under the local authority and of the total area of the Urban Development Authority envisaged by the 1976 Act. In other words, the development plan is expected to confine itself to the overall or general development of the area whereas the details of development of individual plots and small parcels of land covered by the T.P. Scheme are to be dealt with by the scheme. Secondly, the scheme is the legislative intent while the development plan is the Government’s action and whenever there is a conflict between the two, the plan must give way to the scheme, unless the scheme in order to have consonance with the proposals of the town planning scheme is suitable varied under the provisions like Section 57 of the Old Act and Section 71 of the New Act. In other words, if there is any divergence or variance between the scheme and the plan, the scheme being the legislative mandate must override and if the competent authority so feel, they must take suitable actions under those provisions for variance of the scheme and it is my humble view that as long as the scheme stands, the proposals in the development plan cannot over-ride them though in the areas where the scheme is not there, the provisions of the development plan will have to be observed and its non-observance to be visited with consequences provided for in those relevant provisions. This is also going to be a relevant consideration when I come to the merits of the matter.
6. Coming to the factual aspects of the problem, we have to note what happened in the City of Ahmedabad. As said above, various town planning schemes were made under the 1915 Act and the alleged T.P. Scheme Ellisbridge No. 3 with which we are concerned here was holding the field when the 1954 Act came to be passed. The Ahmedabad Municipal Corporation that had come to be constituted in the year 1949 in place of the Borough Municipality constituted under the Municipal Boroughs Act, 1925, started in 1955 acting under Section 3 of that 1954 Act and a development plan was made under that Act and it was sanctioned also by the Government and that development plan was for the period of 10 years, that is, from the year 1965 to 1975, they are upto 31-8-75 to be pricise. Under Section 17 of that 1954 Act, within 10 years the Ahmedabad Municipal Corporation could have carried out a fresh survey of the area within its jurisdiction with a view to revising the then existing development plan, but the Corporation commenced its revision somewhere at the end of 1975; some proposals were made and a tentative draft development plan was made and on 15-1-76 in the official Gazette there was published the proposals of that new development plan. In that plan, the proposal was for having 1.33 F.S.I. This term F.S.I. (Floor Space Index) deserves to be noted. When it is stated that F.S. I is 1, it would mean that the total built up area will be in the proportion of 1 : 1 with reference to to the area of the plot. If the area of the plot is 1000 sq. yards, then the total built up area in that plot including the area of all storeys, will be 1000 sq. yards. In that draft development plan, the Corporation had provided for F.S.I. at 1.33, meaning thereby that in a plot having 1000 sq. yards as its area, the total built up area of that plot, including storeys, could be 1330 sq. yards. As said by me above, the Corporation had no business at that stage to deal with the question of F.S.I. because it was not one of the contents of the development plan as mooted by Section 7 of that 1954 Act, but the fact remains that the Corporation assumed that it had the power to provide for F.S.I, as a part of the proposal of the development. Publication in the official Gazette under Section 4(1) of the 1954 Act is for the purpose of inviting suggestions from the public within a period of two months. Assuming that the municipality had the power to provide for F.S.I. in that new proposal, there was specific mention of 1.33 F.S.I. in their proposal that were published. If within two months from the publication of the development plan any member of the public communicates in writing to the local authority any suggestion relating to such a plan, the local authority is bound to consider such suggestions and may at any time before submitting the development plan to the State Government, modify such plan as it thinks fit. This is the provision of Section 9 of that 1954 Act. Now in this case a strange thing has happened. As said above, the proposal that was published was containing the suggestion about F.S.I. to 1.33. The Corporation seems to be thinking that after undertaking of that formality and making it known to the public their proposals and formally inviting their objections and suggestions relating to such a plan, they have got a free hand to modify such a plan in their absolute discretion. The text of Section 9 is reproduced below:
9. If within two months from the date of publication of the development plan any member of the public communicates in writing to the local authority any suggestion relating to such plan, the local authority shall consider such suggestion and may, at any time before submitting the development plan to the State Government modify such plan as it thinks fit.
The Corporation misreads this Section 9 and asserts before me that after receiving the objections and suggestions from the public, they can modify the plan in any extensive or substantial manner they like. This means that, according to them, they can make more stringent provisions also without making the public know about it them or without allowing the public to have their suggestions in that regard. This is obviously not legal. When Section 9 says that they can modify, what it lays down is that if the suggestions of the public are worthy to be accepted and they are favourable to the citizens who intend to put up their structures on various parcels of land, they can accept those suggestions and modify the plan to the extent of the suggestions received, obviously the suggestions being favourable to the persons who want to build on the lands. Under Section 9, the Corporation cannot have the authority to overhaul the salient features of the proposal and submit the same overhauled plan to the Government which the public do not know. The public are ultimately the concerned parties and the Corporation under Section 9 has no power to tinker with the plan in the manner they like, as if they are exercising some arbitrary powers. What I have observed about Section 9 will apply to Section 14 of the 1976 Act, which is identically worded.
7. Now it so happened that while forwarding the development plan, the Corporation took a decision that F.S.I. should be 1 and not 1.33. No reasons are disclosed for this change, but the fact remains that at the eleventh hour, the development plan submitted to the Government under Section 8 of the 1954 Act contained a proposal that F.S.I. should be 1. I have already said above that the Municipality had no business to deal with the question of F.S.I. because at that stage they were acting under the 1954 Act. Even if they had such an authority, their action in modifying the F.S.I. at the eleventh hour without having public to have their say in that regard was vitiating their modifications. This action of submitting the proposal to the Government under Section 8 of the 1954 Act was made by the Corporation in November 1976 and at that time the 1954 Act was holding the field.
8. Now it so happened that the State Legislature enacted new law, namely, the Gujarat Town Planning and Urban Development Act, 1976 and it came into effect on 1-2-78. The State Government by virtue of Section 10(1) (a) of the 1954 Act was required to sanction the development plan and the regulations so received under Section 8 within the prescribed which under Rule 7 of the Bombay Town Planning Rules, 1955, made by the Government in exercise of powers conferred on it under Section 87 of that 1954 Act, is 12 months from the date of the receipt by the State Government and is 24 months from the date of the receipt of the plan and regulations, if any modifications of the development plan and/or the regulations are considered to be necessary by the State Government. As said above, the plan and the regulations were submitted to the Government in November 1976, but the Government lingered on with the matter and published modifications for the first time in the official Gazette on 21-8-78 and invited objections arid suggestions from the public to the proposals, which inter alia included the question of F.S.I. to be 1. The scheme of Section 10 of 1954 Act do so of 1976 Act also is that if any modifications of the development plan and regulations are considered to be necessary by the State Government, it has to publish in the official Gazette the modifications along with a notice calling upon the persons affected thereby to submit to the State Government their suggestions, if any, in writing within a period of sixty days from the date of the publication of the modifications. Section 10(1)(b) is very clear in that regard, but, as said above, the Government lingered on and only on 21-8-78 it came out with the publication of the modifications in the official Gazette.
9. The question is: What is the effect of this delay on the part of the State Government though the legislative intent is expressed in emphatic language. Considerable arguments were advanced before me by both the sides and I found it very necessary to bestow my full consideration on the question. Mr. Vakil for the Corporation has urged that though couched in imperative language, these provisions should be treated as directory and not mandatory. He in this connection invited my attention to various judgments. First is the case of Montreal Street Railway Company v. Normandin 1917 Privy Council page 142. There it has been laid down that “when the provisions of a statute relate to the performance of a public duty and the case is such, that to hold null and void, acts done in neglect of his duty would work serious general inconvenience or injustice to persons, who have no control over those entrusted with the duty, and at the same time, would not promote the main object of the legislature, such provisions are to be held to be directory only, the neglect of them though punishable not affecting the validity of the acts done”. Another judgment relied upon is the case of Chet Ram Vashist v. Municipal Corporation of Delhi and Anr. . It can be safely said that if the acts done in neglect of these duties would result in serious general inconvenience or injustice to persons who have no control over those saddled with those duties and if no prejudice is likely to be occasioned to anyone if time limited is treated as discretionary, then the time limit is to be treated as exception of the legislature about expeditious disposal and not a fetter. In support of the argument, it is also urged that there was no invalidating consequence provided for by the Legislature. It is also urged that if the proposal was treated as having lapsed, new proceedings for survey and planning can be started and the Corporation and the Government can adopt the very lapsed plan. On the strength of all these circumstances. It was urged that the time-limit should be deemed to be discretionary and not mandatory. I would not say that the arguments abstractly speaking are not sound, but it is to be noted with pertinance that even if the provisions are discretionary, the things are to be done within reasonable time and no in difference approach could be had to the problem. It is not correct to say that if the development plan is not sanctioned within the time limit so prescribed, no prejudice is likely to be occasioned to anyone. It is the say of the respondent-Corporation on the strength of Section 12 of the 1954 Act and corresponding Section 26 of the New Act that on or after the date on which a declaration of intention to prepare a development plan is published, there are fetters on the citizens in respect of carrying on any development work in any building or in or over any land without the permission of the local authority which permission has to be contained in a commencement certificate to be granted by the local authority in the form prescribed. Say for five to 10 years the Government puts the proposal in cold-storage, as it has done in the present case. As said above, the suggestions were not invited within the period of 12 months. After the same having been invited, they had again been put into the cold-storage for the full period of about five years and it is stated that till the Government finds leizure to deal with these proposals, the citizen must not put up the construction or put up the construction as per the provisions of the proposals put in cold-storage by the Govt. If this is so dealt with indifferently or in a lackadaisical fashion, it has to be held that the development plan should be treated as having lapsed, though the Legislature has not specifically provided for its lapsing. It is to be assumed as a matter of necessary implication. There is intrinsic evidence to show that if the Corporation does not carry out its duty of making survey of the area within its jurisdiction, there the State Government can get it done through its own sources at the cost of the local authority. Under Section 10 of the 1954 Act, there is no obligation on the Government to sanction the plan. The Government may sanction the development plan or may drop the proposal. Similar would be the interpretation of the provisions of Section 17 of the 1976 Act. It is, therefore, reasonable to hold that the development plan that came to be sanctioned in the year 1983 was not a legal exercise for the reasons set out above. I would reiterate that the first reason is that the development plan as proposed by the Corporation under the 1954 Act cannot deal with the question of F.S.I. Secondly, the question of F.S.I, under the 1954 Act was not within the competence of the Corporation dealing with a plan under the 1976 Act, the Government cannot sanction the plan made under the 1954 Act, in so far as it deals with the question of F.S.I, and that too in the year 1983. It was very vehemently urged before me that under the repealing Section 124 of the 1976 Act, despite the repeal of 1954 Act the draft development plan published by a local authority and application made to the State Government for sanction of that draft development plan has to be deemed to have been done or taken under the corresponding provisions of the New Act. However, when any action could not have been taken under the Old Act, and therefore it is to be treated as honest and non-existant, the action cannot be deemed to have been done under the corresponding provisions of the New Act. Lastly, no action can be taken after inordinate delay to the obvious prejudice of the persons on whom, restrictions are placed by Section 12 of the Old Act and by corresponding Section 26 of the New Act. It is evident and admitted here that the petitioner’s application for revised plans made twice were rejected inter alia on the ground of its running counter to the proposals in the development plan, namely, the proposal pertaining to F.S.I. taken to be I and not 1.33. I would reiterate the earlier ground that as long as the provisions are not varied or modified, the proposal in the town planning scheme will not have any sway in respect of the areas where town planning scheme operates, though where a development plan is made and there is no scheme, there stringencies might apply.
10. There is one additional circumstance also to be taken note of in this connection. By the time the Government came to handle the municipality’s sponsored draft development plan, there had sprung into existance the urban development authority under Section 3 of the 1976 Act. It is an authority having jurisdiction not only over the entire area of the Municipal Corporation, but also other round-about areas cumulatively known as the development area. Under Section 9 of the 1976 Act, it is an obligation of this urban development authority to prepare and submit to the State Government a draft development plan for the whole or any part of the development area in accordance with the provisions of that Act. Where there is such an urban development authority, the power to prepare the plan is only of that authority. This power was not delegated to the Ahmedabad Municipal Corporation and it is an accepted position. It is a matter of fact that this urban development authority for this area called Ahmedabad Urban Development Authority, AUDA for brevity’s sake, has as a matter of fact prepared a development plan and made regulations in pursuance of the provisions contained in Sub-section (m) of Section 12 and Sub-section (2)(c) of Section 13 of the 1976 Act. These are submitted also to the Government in the year 1981. The constitution of the urban development authority in-charge of the entire development area, which includes the area of the municipality also, is broad-based. Section 5(3) of the 1976 Act provides that an area development authority consists of a Chairman to be appointed by the State Government; the Chief Town Planner or his representative an expert an officer appointed by the State Government; two representatives of the local authority functioning in the area, one of them would be Chief Executive Officer of the local authority and a representative nominated by that authority; two officers of the State Govt, to be nominated by the State Government, a known official member who possess special knowledge or practical experience in town planning to be appointed by the State Government and a member-Secretary to be appointed by the State Government, who shall also be designated as the Chief Executive Authority of the area development authority. Such an expert body by operation of law had already come into existance and had carried out its exclusive assessment and the proposals were pending before the State Government. As a matter of fact, the Government should have taken on hand those proposals made by a more competent authority, but the Government for reasons unknown and not disclosed in any way by any affidavit filed in this petition (The eject has not advanced any argument except stating orally that the Government is adopting the Corporation’s stand) chose to act on the Stale proposals of the local authority and tried to sanction that development plan. This is again an act of bad faith on the part of the Government and this also goes to vitiate its decision of approving that plan. It is still open to the Government to take its decision on the proposals made by AUDA but it seems that the Government is not interested and the say of the petitioner is that the Government wants to beat the citizens with restrictions on their building operations by resort to F.S.I., 1. It is AUDA’s plan that operations under Section 17 of this Act and not the municipality’s Stale plan. AUDA had made its plan under the New Act on 23-7-81. Along with the plan, even regulations have been framed by AUDA and the said regulations are stated to be coming into force on and from 23-7-81. There, the entire area, which includes the Ashram Road also, is covered and F.S.I. is provided for there under Section 12(3) which refers to F.S.I. and maximum built up area. The said plan was submitted by AUDA and objections and suggestions were invited by the Government by its notice dated 16-9-1982. These are published in the Official Gazette Part II dated 16-9-82. Still the Government in 1983 curiously sanctioned the municipality’s proposals of 1976 and blinked at AUDA’s proposals which were seriously taken on hand by the Government. I do not think that the Government wants that on and from 23-7-81 the stringent restrictions and conditions imposed by Ahmedabad Municipal Corporation in the proposed development plan and provisions of proposals made by AUDA in its development plan should simultaneously operate. Section 17 of the New Act will equally apply to development plan made by AUDA and submitted to the Government. It cannot do to say, as has been stated by the Corporation, that this new plan of AUDA cannot affect the earlier revised draft development plan submitted by the local authority under the Old Act. Submission of the plan and asking for permission is not inconsistent either under the Old Act or the New Act, but there is irreconcilable inconsistency in the matter of preparation of development plan and making of development plan. It is because of this that I say that the revised draft plan submitted by the local authority in the year 1976 came to lapse and/or superseded so to say by a revised plan under the New Act and repealing Section 124 cannot come to the succour of the Corporation. Mr. Vakil could not show that on the coming into force of the New Act in the year 1978, of 1-2-78 to be precise, the Corporation’s authority to deal with the development plan continued. Such a power cannot be delegated under the 1976 Act and has not been delegated to the Corporation by AUDA. It is the exclusive power of AUDA, as said above.
11. In this connection and in order to judge the unreasonableness and arbitrariness of the action of the Government, one important circumstance also deserves to be noted. After the municipality had in its initial proposals of the development plan provided for F.S.I. 1.33, it had while forwarding the proposal to the Government had altered this proposal and recommended F.S.I. 1. This is also stated above. It is also stated above that the Government then invited public objections and the Municipality unanimously passed a resolution on 24-10-78 suggesting F.S.I. to be 1.5 and to that effect on 26-10-78 the Respondent No. 1-Corporation had filed objections-cum-suggestions with the Government to the effect that F.S.I. to be 1.5. The standing committee of the Ahmedabad Municipal Corporation also had passed a resolution on 2-7-81 reiterating its stand in respect of F.S.I. to be 1.5. The State Government, however, under its order dated 12-2-82 suspended the operation of the said resolution dated 2-7-81 of the standing committee in exercise of its powers under Section 451(1) of the Bombay Provincial Municipal Corporation Act. This fact is emphasised for the simple reason that the Corporation, which was rightly entitled to feel the veins of the requirements of the city, itself felt that F.S.I. should be 1.5. The expert body, namely, AUDA, also in its proposals referred to 1.33 as F.S.I. to be kept. Still the Government rigidly, if I say so, stuck to its stand for the reasons not so far disclosed. The State Government has audacity enough to come forward and say at the time of hearing through Mr. R.M. Vin, the Government Pleader, that the Government supported the stand of the Corporation. The revised stand of the Corporation show that the F.S.I. should be 1.5. Still in the course of the present litigation, the Corporation took a very entrenchded strange stand voiced by Mr. S.B. Vakil for the Corporation that F.S.I. is sine qua non of law and the Corporation would insist on pulling down the structures that violate that F.S.I. This sort of action on the part of the State Government at any rate is something that should pass the comprehension of any reasonable man. This is also an additional reason showing that the Government was, for some undisclosed reasons, sitting tight on the development plan, was not taking any action but was biding time and ultimately in 1983 extremely belatedly came forth with the sanction of the development plan by insisting in F.S.I. 1, which the Corporation now in a crusader’s fashion is trying to implement. This, in my view, is an additional circumstance speaking of the arbitrary action on the part of the Corporation.
12. One of the controversies that was raised before me in the course of the arguments was that till a new development plan effectively came to hold the field, the old plan would operate. In the context of my view that if the scheme is already there as the part of the law of the land, qua the lands covered by the statutory scheme, old or new plan cannot have any sway unless the scheme is varied. The question is not required to be gone into at all. However, for the sake of clarification, I would say that when under Section 17 of the 1954 Act corresponding to Section 21 of the 1976 Act, preparation of a new i.e. revised development plan is taken on hand, the proposals of the new plan cannot automatically apply for the simple reason that sees 4 to 16 of the 1954 Act corresponding with sections of the 1976 Act will not necessarily apply. No doubt in Section 17 of the 1954 Act and it is stated that the provisions of Sections 4 to 16 shall apply in respect of such revision of the development plan, but this is in so far as they can be made applicable and not absolutely. Section 12 left by itself should be kept confined to the first plan and Section 13 also accordingly will be confined to the first plan. On the expiry of 10 years’ period, the old plan does not lapse, but it holds the field and so till the new plan officially is sanctioned, the old plan should continue. A new proposal to revise the earlier development plan will not, therefore, ipso facto put an embargo on the right of construction of a person. So, I would say that when in Section 12 of the 1954 Act it is provided that no person shall carry on any development work in any building or in or over any land within the limits of the said area without the permission of the local authority which shall be contained in a commencement certificate, what is intended is that this requirement is confined to for first-time development plan proposals. However, I am not required to decide this question and this view is only incidentally expressed by me.
13. There is one additional reason also to strike the proposals of the 1976 plan as bad. In respect of the front portions abutting on the Ashram Road in question, that is, the Ashram Road from the Paldi crossroads to Usmanpura, the F.S.I. is stated to be 1 whereas in the rear part of the plots, the F.S.I. is stated to be more. There is no rational reason to distinguish between the front parts abutting on the Ashram Road and the other parts. If avoidance of the congestion on the road is the conceivable objective behind such a provision, then the traffic even from the rear side of the very plots or nearby plots will equally attribute to the traffic congestion. Moreover, one importance circumstance also deserves to be noted. As far as the Ahmedabad city proper is concerned, the F.S.I. is stated to be more. A judicial notice can be taken of the fact that pressure of traffic is far more in the areas of walled city, popularly so-called, and still in the areas abutting on the Ashram Road, the restriction of F.S.I, is per se unreasonable and arbitrary. Again, I say that the Government has chosen to keep all its cards beneath its sleeves and has remained tongue-tied in this petition. The Government alone could say what prevailed upon it in ignoring the municipality’s 1978 proposals of F.S.I. 1.5 or ignoring P.S.I. 1.33 contained in the original development plan. It is, therefore, reasonable to hold that the Government arbitrarily put the proposal of F.S.I. 1 and confined it to the plots abutting on the Ashram Road in their front portion. This sort of double standards is not open to be maintained in a society governed by the rule of law and such an action can be said to be hit by Article 14 of the Constitution of India and any action of the executive, may be in exercise of the powers under the statutes also, is to be declared as bad at law.
14. In this connection, one more argument, which is to be found at pages 58 and 59 of the affidavit of the Town Development Officer also deserves to be noted. When the first development plan was sanctioned by the Government, the Government had simultaneously purported to direct under proviso of Section 13(1) of the 1954 Act that in the area within the jurisdiction of which the development plan had been sanctioned, grant of commencement certificate shall be subject to the condition that the grant shall not be inconsistent with the manner of development and improvement of the said area as set out in the schedule appended to the Government order dated 21-8-1965. The argument is that this is an independent power exercised by the State Government by virtue of the proviso to Section 13(1) of the 1954 Act and till it was replaced, it held the field. This whole argument, in my view, is proceeding from misconception on the part of the Corporation. The Government’s power to issue general or special directions under Section 13 is limited to the period during which the development plan is in the process of making. It is not a perennial affair which can go on after the plan is sanctioned. In other words, such an order’s life it limited to the interregnum and the moment the development plan is finally sanctioned, the future commencement certificate shall be governed by provisions of the development plan and the regulations to be framed along with that sanctioned plan. If we advert to Section 8 of the 1954 Act, we find that when the development plan is submitted to the State Government for its sanction, the regulations enforcing the provisions of the development plan and explaining the manner in which necessary permission for developing any land can be obtained from the local authority, are to be submitted. It is, therefore, not correct on the part of the Corporation to contend that that Government order issued under Section 13(1) proviso of 1954 Act was operative in the post 1965 period when the first development plan called the pre-development plan came to hold the field officially. So, this whole argument, in my view, contained in paragraph 2.2 of the reply has no relevance whatsoever.
15. It was submitted in the course of the arguments of Mr. Vakil that the petitioner in its petition had for the purpose of its pleading assumed and taken it as the basis that the moment the proposals of the development plan are mooted, Section 12 of the 1954 Act and Section 26 of the 1976 Act would at once apply. His argument was that after having admitted this as a part of their pleadings, the petitioner could not argue that those provisions were not applicable to the area where the scheme was operating. The grievance was that when the petitioner took a particular position of law in the petition, the Corporation would be prejudiced in its defence if the arguments contrary to those admissions are advanced and entertained. Firstly there cannot be an admission on a point of law, which is to be thrashed out by the court after hearing both the sides. Moreover, these arguments were advanced by Mr. G.N. Desai for the petitioner and they were answered also by Mr. Vakil and still he thought it fit to make a grievance that the Corporation would be prejudiced in its defence. I see no case of prejudice, much less of substantial prejudice, and, therefore, it is open to the court to consider whether the rigours of Sections 12 and 13 of the 1954 Act and the rigours of Section 26 of the 1976 Act can or cannot apply to the areas where the scheme has become the part of the Act and is in force.
16. Mr. Vakil had at one stage contended before me that the fixing of F.S.I. by the Government was not under the development plan, but was under the Government’s order referred to above issued under Section 13(1) of the 1954 Act and not under the development plan as such. If it be so, that provision, as said by me above, could be only by way of interregnum and cannot be a permanent feature. The scheme of Sections 12 and 13 read together makes it clear, as said above, that the Government’s power to issue such orders, special or general, is for the issuance of the commencement certificate during the consideration of the development plan, but the Government has no power to issue any such thing once the development plan is sanctioned. After the development plan is sanctioned, along with it are to be finalised the regulations and unless regulations validly made provide for such F.S.I. no recourse could be had to any such order passed by the Government. Mr. Vakil in this connection had urged that there was no point raised in the petition that the F.S.I. could cannot be prescribed by the Government under the Government’s orders, as per the provision to Section 13(1) of the 1954 Act. Such a pure legal question, even if not pleaded, can be urged and can be answered in the course of the hearing and the court cannot be bogged down into unnecessary niceties.
17. It was also urged that while sanctioning the plan in the year 1983, the Government could provide for F.S.I. by recourse to Section 18(2)(j) of the 1976 Act. It cannot be denied that Clause (j) Section 18(2) of the 1976 Act certainly enables the plan maker to have percentage of building area of a plot, etc., but as said by me above, the Government could not sanction something which was not submitted to it. I have already held above that this plan submitted by the Corporation in the year 1976 had died out and could not be disinterned from the grave after such a long time.
18. Mr. Vakil had also invited my attention to paragraph 2.4 of the affidavit of the Town Development Officer at page 60. There it was stated that the Municipal Administrator on 21-6-1974 had framed regulations controlling the development of the area under the T.P. Scheme, Ahmedabad, but this also is assailable on the ground that different parts of the city are differently treated without any rational basis. Apart from it, in the Regulation No. 231 the F.S.I. permissible was upto 1.33 in commercial area and the municipality cannot try to support it with reference to F.S.I. 1.
19. In paragraph 15 of the affidavit-in-reply filed by the Senior Town Planner, State of Gujarat, he has stated that “more floor space index would mean more built up space which may lead to the concentrated development in terms of much more area. This concentrated development may ultimately lead to the high rise development, highland values, more traffic, more activities and other related issues inclusive of the issues of water supply, drainage, electricity (problems of the physical infrastructure as well as social infrastructure). In relation with these issues a comprehensive view is to be taken regarding the development control regulations which include F.S.I. also”. He, therefore, justified the State’s action. This affidavit leads us no where for the simple reason that it does not meet the requirements of various allegations of mala fides and arbitrariness made by the petitioner in this petition. It is in this context that I have stated above that the State Government has practically not filed any reply.
20. Before I proceed further, it is necessary to deal with one preliminary objection raised by Mr. Vakil in this petition. According to him, the two building permissions sought for by the petitioner were refused not only on the ground of F.S.I., but on many other grounds. Those other grounds are not set out. According to him, the Corporation cannot be asked to reconsider those applications afresh when there are other grounds. In my view, this argument is not tenable. The petitioner’s application is rejected substantially on the ground that it violates the provisions of F.S.I. The position of F.S.I. was in a state of flux so to say during this period. This Corporation itself had in the year 1978 proposed F.S.I. 1.5 for this area. The Standing Committee had also passed a resolution to that effect in the year 1981. If a citizen or a body of citizens feels that in these circumstances their applications will be considered favourably and if in that anticipation go ahead with the construction, the public body like the Corporation should not sit tight and insist on the pound of flesh rule. After all the Corporation is a public authority wielding powers, but these powers are ultimately to be exercised reasonably and wherever any relaxation in rules is permissible, bona fide or mistaken transactions of the citizens should be respected, though they may not be technically perfects. These are the days of notorious encroachments on public streets, a public pleas regarded for public purposes. Anyone residing in the City of Ahmedabad will be in a position to testify to such encroachments on public streets and foot-paths in public pleas themselves blissfully blinked at by the Corporation and its officers. If it be so and if other breaches can be condoned but not the provision regarding F.S.I. as stated by Mr. Vakil in the course of his arguments, there is no reason why the Corporation should not be asked to reconsider the case of the petitioner, particularly when the question of F.S.I. insisted upon as I is untenable wholly and the question requires to be re-examined in the light of the provisions of the T.P. Scheme. The Corporation has also to consider the question of F.S.I. between front plots and rear plots as well as small plots and big plots in respect of building by-laws and regulations. The Corporation will be required to consider whether there is discrimination between front plots and rear plots and similarly between small plots and big plots when they are located in the same are and such questions are required to be examined in details. All such questions will be required to be re-examined in the light of the law. The situation in the City of Ahmedabad has become complex and complicated because of the interaction of the 1954 Act, 1976 Act, the municipality’s different resolutions at different times, provisions of AUDA and the provisions of 1945 T.P. Scheme to some of the area as amended in the year 1976 and that is why the whole question is required to be re-examined afresh in the light of all attendant circumstances, the Corporation not taking a rigid attitude in such circumstances but examining the question of the citizen’s construction dispassionately and without resorting to technicalities here or there. It is in these circumstances that I say that the petition is not liable to fail on the ground of preliminary objection. It is not correct, therefore, to say that the petition is only a hypothetical one.
21. In above circumstances, the petition is required to be allowed to the extent set out below by granting the prayers:
(i) The notification dated 12-8-1983 of the Government of Gujarat under the Gujarat Town Planning and Urban Development Act, 1976 making provision of F.S.I, of 1 in respect of buildings abutting on the Ashram Road is ultra vires;
(ii) The permissible F.S.I, in respect of the buildings abutting on the Ashram Road cannot be less than F.S.I. 1.33;
(iii) At any rate, the building permissions sought for after the proposals of AUDA are to be examined in the light of the said proposals and at any rate the proposals of AUDA regarding F.S.I. have to be complied with;
(iv) The Corporation has acted without authority of law in providing F.S.I. of 1 behind the back at the time of submitting its proposal in January 1976 and it had no authority at law to modify its proposals without inviting objections of the public and, therefore, that particular part of the proposal was bad at law and monest;
(v) It is declared that the permissible F.S.I. on the Ashram Road cannot be less than 1.33, and the petitioner’s applications for permission should be directed to be re-examined by the Corporation on that basis;
22. The petition accordingly stands allowed by making the rule absolute to the aforesaid extent. The Corporation and the State of Gujarat shall jointly and severally pay the costs of the petitioner and bear their own.