P L D 1966 Dacca 472 (PLP)

On the 16th January 1963, the petitioner applied to the Commissioner, Chittagong Division, the Authorised Officer, for permission to construct a hand brick‑making plant to manufacture bricks on some of the plots which were included in the Master Plan in connection with the "Alpine" Park. The Commissioner, by his memo. dated the 8th February 1963, informed the petitioner: "As the cutting of hills has been clashing with the Master Plan being located in the area earmarked for "Alpine Park" your application for permission is refused." On the 17th July 1964 the petitioner then applied to the Chairman, Chittagong Development Authority to supply it with copies of the particulars of scheme, map, etc. showing tile "Alpine Park" project within the Chittagong Master Plan Area. By Memo. No. T. P./NOC/I/1228 dated the 15th August 1964, the Chittagong Development Authority informed the petitioner that as the R. S. Plots belonging to it were included in the Master Plan for the proposed "Alpine Park", "No‑Objection Certificate" for any type of construction could not be issued. Being aggrieved by this, the petitioner filed an appeal to the Authority under section 24 (2) of the Ordinance on 12‑10‑

64. This appeal appears to have been considered in a meeting of the Chittagong Development Authority on the 9th December 1964, in which it was decided that the proposal of the petitioner for construction on the said plots could only be considered at the time of the regular review of the Master Plan for which the Government were soon expected to be obtaining the services of Town Planning Experts. It is said that the lands included in the so‑called "Alpine Park" area belonging to the petitioner are very valuable. The price of these lands are rising daily. These lands are mostly situated on tillas or elevations rising to an average height of about 90 ft. and are similar in topography and landscape to other tilla lands scattered throughout the length and breadth of the Chittagong Town and suburbs. The lands do not possess any dramatic qualities of any mountain landscape in miniature and the scenic value of these lands will be further enhanced by the construction of beautiful buildings with lawns and flower beds. The petitioner's further case is that no scheme for development or improvement of the area in question has been submitted by the Chittagong Development Authority for the approval of the Provincial Government in their five‑year programme of development under section 28 (1) of the Ordinance nor has any such scheme been approved by the Provincial Government. The petitioner, therefore, claims that the restrictions imposed by the Chittagong Development Authority with regard to the use of the lands by the petitioner company are unreasonable restrictions and interfere with its right to hold property within the meaning of Fundamental Right No. 13 guaranteed by the Constitution. The petitioner therefore has claimed that a declaration be made that the inclusion of the lands of the petitioner‑company in the Master Plan has been made without any lawful authority and as such is of no legal effect and that the respondents be restrained from exercising any "restrictive right" and privilege under the provisions of the Ordinance. It may be mentioned in this connection that the petitioner ?,as also asserted that the lands in question have been included in the Master Plan only to benefit an individual who has a house near about these lands. The first point that has been canvassed in this case is that the lands of the petitioner were included in the Master Plan for the construction of the so‑called "Alpine Park" only to benefit an individual. The statement made in this connection is: "That the ground given for the "conservation" of the land is beyond the scope of the Chittagong Development Authority Ordinance, 1959, (E. P. Ordinance LI of 1959), is not bona fide and se; ms to have been included without lawful authority in the draft Master Plan to please a highly placed gentleman owing a residential building of high value in the vicinity." In refuting the above statement, the respondents have stated that provision for open spaces has been made in the Chittagong Master Plan only where it is essentially necessary from the planning point of view and the draft Master Plan was prepared by British Town Planning Consultants and Architects like Minoprio and Spencely and P. W. Macfarlane. It will be seen that the petitioner has not disclosed the name of the person for whose benefit the lands belonging to it have been included in the Master Plan. In these circumstances, it is difficult to hold, particularly in view of what has been stated in the affidavit‑in‑opposition, that the plots of the petitioner were included in the Master Plan for construction of "Alpine Park" only to benefit an individual. The next point that has been urged is that the restrictions imposed upon the use of the lands by the petitioner are unreason able restrictions with regard to property rights and therefore the provisions of the Ordinance, on the basis of which these restrictions have been imposed, are liable to be struck down. Section 22 of the Ordinance provides for preparation of Master Plan. It lays down that the Authority shall, as soon as feasible, but not more than two years after the provisions of this Ordinance cone into force, prepare and submit to the Provincial Government for approval a Master Plan for the Municipality and the areas in its vicinity indicating the manner in which it proposes that lands should be used (whether by carrying out thereon of development or otherwise) and the stages by which any such development should be carried out. Section 23 provides that when the Provincial Government approves the Master Plan it shall announce the fact by notification and the publication of such notification shall be conclusive evidence that the Master Plan has been duly made and approved and there after it shall be unlawful for any person to use any land for any purposes other than that laid down in the Master Plan, unless he has been permitted to do so under section

24. Section 24 then lays down that if any person desires to use any land for any purpose other than that laid down in the Master Plan approved under section 23, he may apply in writing to the Chairman for permission so to do. Evidently, the petitioner company applied under section 24 and on permission being refused by the Chairman appealed and the appeal has been disposed of by the Chittagong Development Authority in the; manner which has already been noted. Clause (4) of section 2,4 then provides that no compensation shall be payable to any person owing to the, restricted use to which his land may be put under section

23. It is contended that these provisions coupled with the fact that there is no time limit with regard to the execution of schemes for development contemplated by the Ordinance, impose unreasonable restrictions, and therefore they are void in view of Fundamental Right No.

13. Fundamental Right No. 13 has been granted in the following terms: "Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to acquire, hold and dispose of property." Learned Advocate‑General appearing for the respondent has contended that Fundamental Right No. 13 has no application to the present case. His contention is that the restrictions imposed by sections 23 and 24 of the Ordinance have no reference to the right to acquire or dispose of property, and so far as holding of property is concerned, that has not also in any way been affected by the restrictions imposed on the petitioner by disallowing it to possess the lands in question in any manner contrary to the provisions of the Master Plan. In this connection, reference has been made to the decision of the Indian Supreme Court in the case of Charanjit Lal Chowdhary v. The Union of India and others (AIR 1951 SC41). On a careful reading of the two judgments of Mukherjea and Das, JJ. on which reliance has been placed by learned Advocate‑General, we are unable to accept his contention. It is true that Right No. 13 as in the Indian Constitution uses the word "Holding". Holding cannot be given the restricted meaning which the learned Advocate‑General wants us to give to it. In our view, holding connotes not only remaining owner but also the right of possession. When the right of an individual proprietor of a property is restricted with regard to free user it amounts to putting restriction on his right to hold that property. The right to free exercise of possession is a right which is pertinent to, or flows from, the right of owner‑ship, and whenever that right is restricted, we are of the view that the right to hold the property is curtailed. In this view of the matter, the only question to be determined in connection with this point is: Whether the restrictions which can be imposed by sections 23 and 24 of the Ordinance are reasonable restrictions within the meaning of Fundamental Right No. 13 of the Constitution. Learned Advocate for the petitioner, in order to emphasise his argument that these restrictions are not reasonable, has pointed out that the provisions of the Ordinance do not lay down any time limit with regard to execution of schemes for which lands are included in the Master Plan. According to him, this unlimited discretion left to the Chittagong Development Authority in the matter of execution of schemes and thereby depriving persons indefinitely from free enjoyment of properties, is an unreasonable restriction. It has further been pointed out that the provision of subsection (4) of section 24 which deprives the owners of properties included in the Master Plan from compensation points to the same conclusion. The Ordinance, as the preamble shows, was promulgated to make provision for the development, 'improvement and expansion of the town of Chittagong and certain areas in its vicinity by opening up congested areas, laying out or altering‑ streets, providing open spaces for purposes of ventilation or recreation, demolishing or constructing buildings, acquiring land for the said purposes and for the re‑housing of persons displaced by the execution of improvement schemes, and otherwise. The underlying idea behind the preparation of a Master Plan by Town Improvement Authorities is to draw up a comprehensive plan for improvement of certain areas according to modern ideas of town development. The execution of schemes to give effect to all the projects contemplated by such a plan has, of necessity, to be a long drawn affair as it is dependent not only on the availability of finance but of many other things such as experts to execute them. It is dependent not only on the availability of finanes but of many other things such as experts to execute them: It is in this context that we are to see whether the provisions of sections 23 and 24 which no doubt fix no time limit for con tinuance of restriction contemplated by these sections can be said to have imposed unreasonable restrictions on owners of properties whose lands have been included in the Master Plan in respect of holding the same. Learned Advocate for the petitioner in support of his contention that inasmuch as there is no time‑limit for execution of the schemes and as such the restrictions can be continued indefinitely and therefore they are unreasonable, has relied on the decision of the Supreme Court in the case of Messrs East and West Steamship Co. v. Pakistan (P L D 1958 S C (Pak.) 41) and as well as the decision of that Court to the case of Saiyyid Abul A'la Maudoodi v. Government of West Pakistan (P L D 1964 S C 673). In interpreting Fundamental Rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the over‑riding necessity or interest of the community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community an individual or a number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restriction, in our view, can never be considered to be unreasonable. In determining reasonableness of restrictions, reference has to be made to the objective of the law in question. If the law has been made in public interest, and in order to achieve the objective of the law certain restrictions are to be placed on the rights of individuals, we do not think it can seriously be argued that such restrictions are unreasonable. Judged from this point of view, we feel that the purpose for which the Ordinance was promulgated could not be achieved without placing restrictions on rights of certain individuals with regard to enjoyment of their properties. We are also of the view that, having regard to the enormity of the task which the Chittagong Development Authority is required to execute, no time limit could be fixed with regard to execution of schemes, as contemplated by the Master Plan. It will be seen that under section 28 of the Ordinance the Chittagong Development Authority is required to prepare and submit to the Provincial Government five‑year programmes of development and improve ment of the areas covered by the Master Plan. The grievance of the petitioner‑company is that in the five‑year programmme that has been prepared by the Authority and submitted to the Provincial Government the lands in question have not been included. We have already noted that the schemes contemplated by the Master Plan cannot be completed or executed within a fixed time‑limit. In drawing up the programmes of development and improvement, the Authority must be left with the discretion of deciding which scheme is to be preferred over which other. We are, therefore, of the view chat, though the Ordinance does not fix any time limit with regard to the restrictions contemplated by sections 23 and 24, they cannot be said to be unreasonable on that ground. It is true that in the cases on which Mr. Amjad Hossain has relied indefiniteness of a restriction has been taken into account to hold that the said restriction was un reasonable but these decisions must be read with reference to the facts of those cases. In determining reasonableness or otherwise of a restriction, the facts and circumstances of each case and the objects with which the law was enacted are to be taken into account. In the present case; we have already pointed out that, having regard to the object of the act and the task which the Chittagon Development Authority is required to perform under the Ordin ance, indefinitetress with regard to restrictions placed on property rights can not be the sole criterion for holding that they are unreasonable. We have no doubt found that the restric tion contemplated by sections 23 and 24 are not unreason able but this does not mean that if in a given case it is established that the execution of a scheme is deliberately or unnecessarily deferred and the owner affected will be without remedy or that this Court will have no power to interfere. Learned Advocate for the petitioner has then relied upon the provisions of subsection (4) of section 24, which lays down that no compensation is payable for the restricted use of any property coming within the purview of section 23, to show that this also indicates that the restrictions are unreasonable. In our view, the grievance of the petitioner made in this connection is really in regard to loss suffered which could adequately be paid by way of compensation and therefore comes within the purview of Fundamental Right No. 14 of the Constitution. Unfortunately the provisions of this subsection cannot be questioned in view of paragraph (d) of clause (3) of Right No. 14 which has clearly protected the provisions of this Ordinance with regard to payment of compensation. In this view of the matter, we are unable to accept the contention of the learned Advocate for the petitioner that the restrictions imposed by section 23 as well as section 24 of the Ordinance are unreasonable restrictions within the meaning of Fundamental Right No.

13. The only other point that has been canvassed in this case is that the purpose for which the lands in questions have been included in the Master Plan is not a purpose within the purview of the Ordinance. We have already noted the purposes for which the Ordinance has been promulgated as well. as the purpose for which the lands in question were included in the Master Plan. The Chittagong Development Authority, in approving the recommendation of the Town Planners, passed the following resolution: " "Alpine Park".‑Full consideration were given to the location of a park with the fascinating name Alpine Park as provided in the Master Plan. It is considered that such. an amenity for a 'modern community is essential. This park has been proposed on a range of hills covering about 117 ages of land with a dramatic view on all sides and the land is available without any eviction. This is within the easy reach of middle class and lower income group people as it is near to the town and will ultimately, with developments in northern regions, come within the town. The modern trend is to provide such open spaces is all busy and congested cities for relief to the people . . . . . ." It is clear from the terms of the resolution that the primary object with which these lands were included in the Master Plan was to provide an open space for middle class, and low income groups of people. It is true that in doing so it is contemplated that the hillocks will be left intact. This has been done with a view to add to the beauty of the town. We do not see how this can be said not to be covered by the purposes for which the Ordinance was promulgated. We, therefore, find that there is no substance in any of the contentions put forward on behalf of' the petitioner. The Rule, therefore, is discharged but we make no order as to costs. Mr. Amjad Hossain prays for a certificate under Article 58 of the Constitution. This case involves substantial questions of law with regard to the interpretation of the Constitution, and it is certified accordingly. SALAHUDDIN AHMED, J.‑I agree. K. B. A. Petition dismissed.