The Municipal Council, Tiruchirapalli vs H.H. The Maharana of Limbdi by power Agent Sri V.C. Gopalratnam, Advocate, Madras

Ramachandra Iyer, C.J.—By G.O. No. 2710 (Health) dated 29th July, 1950, the Government of Madras sanctioned a Town Planning

Scheme for the Tiruchirapalli Municipality known as Salai Road Extension Town Planning Scheme. The Maharana of Limbdi had two items of

properties within the scheme area. Although the scheme was promulgated as early as the year 1950, the Municipality appears to have been quite

indifferent about the levy of betterment contribution for sometime. In May 1953 it appears to have approached the Government for the

appointment of an Arbitrator under S. 27 of the Madras Town Planning Act. The time fixed by the scheme for filing claims for betterment

contribution before the Arbitrator had already expired. The Government was also moved, in pursuance of Cl. 21 (a) of the Scheme, to extend the

time. The Government responded to the request of the Municipality and issued G.O. Ms. 683, Health, dated 22nd March, 1954, appointing an

Arbitrator to discharge the duties under Cls. (a) to (d) of Sub-S. (1) of S. 27 and also extending the time till 21st November, 1954, for submission

of the Municipality''s claims for betterment contribution under a power vested in it under Cl. 21 (a) of the Scheme. The Arbitrator then entered

upon his duties and fixed the market value of the properties which were liable for betterment contribution. His award was impugned by the

respondent, the Maharana of Limbdi, principally on the ground that the Government had no authority to extend the period of time originally fixed

under the scheme. The learned District judge accepted that contention and set aside the assessment of betterment contribution. Ch. III of the

Madras Town Planning Act provides for the making, variation and revocation of schemes. S. 14 which occurs in that Chapter empowers the

Government to sanction the Scheme as passed or adopted by the Municipal Council, after bearing objections, if any, and making such enquiry as it

may think fit. Once the scheme is sanctioned and published, it will have effect, from the date of publication of the notification and the execution of

the scheme should be commenced forthwith. S. 15 of the Act provides for variation of revocation of the Scheme once promulgated. S. 23 which

confers a power on the Municipal Council to levy betterment contribution states:

Where by the making of any town planning scheme (the value of any property has increased or is likely to increase); the Municipal Council, if it

makes a claim for the purpose within the time (if any) limited by the scheme (not being less than three months) after the date of publication of a

notification of the (State Government) sanctioning a scheme under S. 14, shall be entitled to recover from the owner of such property an annual

betterment contribution for such term of years and at such uniform percentage of the increase in value not exceeding ten per centum as may be

fixed in the scheme;

Provided that the aggregate amount of the contributions so recovered shall not exceed one half of the maximum increase in value during the

aforesaid term of years at ascertained under the next following Section.

In the present case the relevant Clause i.e., Cl. 21 (a) of the Scheme, as originally sanctioned, ran as follows :

Claim for betterment contribution under S. 23 of the Act shall he submitted to the Arbitrator within two years of the date of the Scheme unless the

Government order otherwise......

The case for the Municipality is that inasmuch as the Government by G.O. Ms. No. 683, Health, dated 22nd April, 1954, has extended the time till

21st November, 1954, the proceedings now initiated by the Municipality would be valid. The learned District Judge, however, thought that the

Clause ""unless the Government otherwise order"" could not relate to the period within which the claim had to be made, but it would relate to the

persons to whom the claim for betterment contribution should be made. We cannot accept this interpretation. Cl. 21 is clear and there is not even

any ambiguity in it. What it intends to do is to confer on the Government a power to limit the period of time within which the claim for betterment

contribution should be made.

But that view does not dispose of the matter. It has been argued for the respondent that the expression in Cl. 21 (a), namely, ""unless the

Government order otherwise"" which has the effect of conferring power on the Government to extend or modify the period of time (sic) by the

scheme, is ultra vires. The (sic) within which the claim for betterment contribution is to be made, is a matter coming within the provisions of the

Scheme in the instant case. Any alteration of it would involve an amendment of the Scheme, which can be done only after the formalities prescribed

by the statute have been gone through. S. 23 of the Act says that the Municipal Council should make a claim for betterment contribution within the

time limited by the Scheme. That implies that it is only the Scheme that can fix the time and that it will not be open to any other authority to do so;

at any rate where the Scheme has fixed a time, no other authority can change it. The Scheme therefore which should be in conformity with the

statute, cannot authorise the Government to fix the time within which the which the claim for betterment contribution should be made. I am,

therefore, of opinion that the clause ""unless the Government order otherwise"" which implies a power in the Government to extend or reduce the

time fixed by the scheme, will be invalid, being contrary to the provisions of S. 23 of the Act.

Mr. V. Ramaswami appearing on behalf of the petitioner has invited my attention to the decision in Ranganathan v. Krishnayya (1946) 1 M.L.J.

255 = 59 L.W. 211 where it was held that it was not essential for a Scheme under the Act to prescribe the time within which the claim for

betterment contribution is to be made. That may be so. But the question here is, where the Scheme does fix a time, whether it will be open to any

other authority to modify it except by amending the scheme. S. 15 (2) of the Act recognises a power in the Government, at any time, to vary or

revoke a scheme sanctioned under S. 14. The power to vary can be exercised only after publishing, in the prescribed manner, a draft of such

variation and observing the other formalities prescribed in that provision. In the present case Government could have exercised its undoubted

powers under S. 15 for amending the Scheme so as to alter the date of receipt of claims for betterment contribution. But that is not what they did.

It was then argued on behalf of the petitioner that the entirety of Cl. 21 (a), relating to the time within which the claims have to be made, should

be regarded as invalid and in that event, the principle of the decision in Ranganathan v. Krishnayya (1946) 1 M.L.J. 255 = 59 L.W. 211 would

apply to the case. I am unable to accept this argument as the objectionable clause in in it is severable from the rest of it. It was within the

competence of the authority which made the Scheme to prescribe the time within which the claims for betterment contribution should be made. It

fixed it as two years. That was a valid provision. Instead of stopping there, it proceeded to confer a power on the Government to modify that time.

This, in my view, cannot be done, having regard to the provisions of S. 23, which contemplates the Scheme itself fixing the time. The clause ""unless

the Government order otherwise"" being severable from the rest, can be regarded as invalid without the rest of that clause being considered invalid.

The result is that the assessment of betterment contribution in the present case should be regarded as illegal. It will be open to the authorities to re-

commence the proceedings, in case the Government sanctions a modification of the Scheme. The civil revision petitions fail and are dismissed. No

costs.