judgement:
3269 3290 of 1982 (Under Article 32 of the Constitution of India).
M.S. Ganesh for the Petitioners.
V.Kanth, C.V. Subba Rao, Ms. Halida Khatun, N.S. Das Bahl and D.N. Misra for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The first petitioner in these peti tions is the Telecommunication Research Centre Scientific Officers (Class I) Association.
The petitioners 2 to 22 are its members.
They are working 1009 as officers in the Telecommunication Research Centre of the Posts and Telegraph Department which is directly under the control of the P&T Board of the Ministry of Communications, Government of India.
The Telecommunication Research Centre is engaged in the research and development work concerning the telecommunication equipment for the use of the Depart ment and in advising the P&T Board on relevant technical matters relating to the introduction of new equipment and technology in the existing public communication net work.
The recruitment to the different cadres in the Telecommuni cation Research Centre is now being made under the Scientif ic and Technical Officers Grade I (Telecommunications Re search Centre of the Posts and Telegraphs Department) Re cruitment Rules, 1962 (hereinafter referred to as "the Recruitment Rules") framed by the President under the provi so to Article 309 of the Constitution of India.
During the period between 1956 and 1962 and further till 1965 all the Class I posts of the Scientific and Technical Officers Grade I namely Assistant Director and Deputy Director were manned by the Transferred Field Officers belonging to the Indian Telecommunication Service Group A and Group B.
For the first time the Union Public Service Commission advertised for the recruitment of 10 Scientific and Technical Officers Grade I in the Telecommunications Research Centre under the Recruitment Rules.
These were General Central Service Class I posts and they continue to be so till today.
In response to the said advertisement petitioners 2,3 and 4 applied for recruitment and they were selected for appointment to the posts of S&T.O. Grade I.
At the time of the filing of these writ petitions there were in all 21 officers who had been recruited at the entry level of Junior Class I posts of S & T.Os Grade I. They were recruited in four batches in 1965, 1967, 1970 and 1973.
The Class I posts in the Telecommunication Research Centre consist of the following posts: 1.
Director (Senior Adminstrative Grade Level I) 2.
Additional Director (Senior Administrative Grade Level II) 3.
Deputy Directors (Junior Administrative Grade) 4.
Assistant Directors (Senior Class I) 5.
Scientific and Technical Officers Grade I (Junior Class I).
The Posts of Deputy Directors, Assistant Directors and S.T.Os Grade I are filled by the following methods: 1010 (a) by direct recruitment through the Union Public Service Commission, (The petitioners belong to this category.
They are now holding the posts of Assistant Directors or Deputy Directors since 1975.
Direct recruitment to the Telecommuni cation Research Centre has been discontinued.) (b) by transfer of Group A Field Officers recruited through the Union Public Service Commission by written examination followed by an interview, (These officers belong to the Indian Telecommunication Service Group B) and (c) by transfer of Group B Field Officers who are Posts and Telegraphs departmental promotees belonging to the Telegraph Engineering Service, Group.
The direct recruits to which category the petitioners belong and the Transferred Field Officers Group A working in the Telecommunication Research Centre discharge same func tions and duties.
The qualifications for recruitment pre scribed in the case of both classes are the same.
They are in the same pay scales from 1.1.
1973 at the comparable levels/grades, i.e., Scientific and Technical Officers Grade I, Assistant Directors and Deputy Directors as recommended by the Third Pay Commission and accepted by the Government.
In these petitions, the petitioners have raised two grounds, namely, the first relating to the denial of promo tional opportunities to them on account of the irregular implementation of the rules of promotion contained in the Recruitment Rules and the second relating to violation of Article 14 and Article 16 of the Constitution by not grant ing them the same special pay which is granted to the trans ferred officers who are working in the Telecommunication Research Centre in the same posts and discharging the same functions as the petitioners.
Having regard to the inadequacy of the material produced by both the sides before us and to the fact that the offi cers who are likely to be affected by the decision are not impleaded as parties by name to these petitions, we are of the view that the first question should be left open to be decided by the Central Administrative Tribunal.
We accord ingly express no opinion on the said question.
The second question relating to the grant of Special Pay requires 1011 to be decided by us.
It is seen that the Indian Telecommuni cation Service Officers who are working in the Telecommuni cation Research Centre are being given Special Pay of Rs. 300, Rs. 200 and Rs. 150 per month in addition to their pay scales in the grades of Deputy Director, Assistant Director and Scientific and Technical Officers Grade I respectively with effect from 1.1.1973.
The direct recruits to which category the petitioners belong are not given any Special Pay in these grades and they are given only the pay at the pay scales prescribed for them.
It is stated that the total number of officers who are thus getting Special Pay is of the order of 275 while only about 25 officers who are direct recruits working in the Telecommunication Research Centre are not given Special Pay paid to the others holding the same posts.
A number of representations had been made earli er by the direct recruits but all in vain.
It appears that at the official meeting held in May, 1979 with Shri J.A. Dave Secretary, Communications, Government of India, there was consensus on the question of granting of Special Pay to the direct recruits as in the case of transferred officers as can be seen from the letter written by the Association on the petitioners (Annexure XIX) and that the Director, Tele communication Research Centre also recommended for granting Special Pay accordingly.
But nothing came out of all this.
Hence the petitioners have filed these petitions demanding payment of Special Pay to them also.
The discrimination between the direct recruits and the transferred officers regarding the payment of Special Pay is attempted to be justified by the Government in the Counter affidavit filed by Shri C.L. Sumon, Assistant Director General (P & T Directorate).
It is stated that the petition ers (direct recruits) who are specifically recruited to the Telecommunication Research Centre for a limited purpose are not entitled to any Special Pay but the transferred officers from the Indian Telecommunications Service who are selected by the Union Public Service Commission after a rigorous competition examination need to be paid Special Pay.
It is alleged that 'it is felt that most of the direct recruits TRC officers may be good in small areas in which they are working, but their capability of taking over a complete group and directing them to fruitful research is doubtful '.
This statement is a vague one and has the effect of adding insult to injury.
This allegation appears to be a lame excuse for denying what is legitimately due to the direct recruits.
It is not the case of the Government that the petitioners are not competent and are not able to discharge their duties.
All the direct recruits are graduate engineers and have been working throughout in the Telecommunication Research Centre.
They do the same job as the transferred officials.
The Special Pay is not being paid to the 1012 transferred officials for compensating their displacement or for their qualifications.
It is not deputation allowance.
It is paid for the arduous and special nature of the functions to be discharged in the Telecommunication Research Centre.
The rigorous test is applied while transferring them to the Telecommunication Research Centre to prevent persons of inferior caliber amongst them getting into the said centre.
It does not mean that persons who are directly recruited and working in the centre are inferior to those who enter the centre by transfer.
It is interesting to note that the Minister of State for Communications answered the question relating to non payment of Special Pay in the Lok Sabha on March 30, 1982 thus: "Question No. 5864 Wi11 the Minister of Communications be pleased to state: (c) whether it is a fact that Special Pay is not given to a few graduate engineers recruited specifically for TRC when the qualifications, functions, duties and responsibilities of these officers in TRC are the same as those of the field officers transferred to TRC and what is the reason for not doing so?" Answer Minister of State for Communications: ". . . . . . . . . . 2.
The officers specifically recruited for TRC through UPSC, are performing functions for which they are recruited, while on the other hand, the officers drawn from the ITS cadre, when posted in TRC. are required to perform duties, which are not in their general line.
" It is seen from the above answer that the Government had virtually admitted that all relevant things such as qualifi cations, functions, duties and responsibilities are the same as between direct recruits and the transferred officials and that the transferred officials had to be paid extra amount by way of Special Pay in addition to their scale of pay which is the same as the scale of pay of direct recruits because the transferred officials had to perform in the Telecommunication Research Centre duties which are not in their general line.
In another part of the same answer it was also admitted that many such transferred officials were in the Telecommunication Research Centre for more than six years.
Still the Government did not show any eagerness 1013 to grant special pay to the direct recruits also.
We feel that there is no justification to deny the Special Pay at the same rates to the direct recruits working in the Tele communication Research Centre.
Denial of Special Pay in the above circumstances to the direct recruits amounts to viola tion of Articles 14 and 16 of the Constitution of India.
Following the decision of this Court in Randhir Singh vs Union of India and Others, ; and the decision of this Court in M.P. Singh & Others vs Union of India, (Writ Petition Nos.
1309713 176 of 1984 decided today) we hold that the direct recruits (to which category the peti tioners belong) in the Telecommunication Research Centre are entitled to the Special Pay at the same rates at which it is paid to the transferred officers working in that centre with effect from the date from which the transferred officers have been drawing the Special Pay.
We accordingly direct 'the Respondent No. 1 Union of India to pay the special pay to the direct recruits with effect from the date on which the transferred officers commenced to draw the Special Pay upto date and to continue to pay it in future also as long as the transferred officers continue to get it.
The arrears of the Special Pay upto date payable to the direct recruits shall be paid within four months from today.
The above petitions are allowed to the above extent.
The question relating to the denial of promotional opportunities to the petitioners according to the Recruitment Rules is left open to be agitated before the Central Administrative Tribunal.
No costs.
P.S.S. Petitions allowed.

summary:
The recruitment to Class I posts in the Telecommunica tion Research Centre of the Posts and Telegraphs Department is made partly by direct recruitment through the Union Public Service Commission and partly through transfer of Group A and Group B Field Officers.
The officers brought into the Centre on transfer were being paid special pay in addition to their pay.
The direct recruits were denied this privilege.
The petitioners 2 to 22, members of the first petition er Association, who belong to the direct recruits category and are working in the Centre on the same posts, and possess same qualifications, discharge same functions and duties as the transferred officers, and are in the same pay scales, assailed the denial of special pay to them as discriminatory and violative of Articles 14 and 16 of the Constitution.
Their claim was contested by the Department and the discrim ination was sought to be justified on the ground that the direct recruits were.
specifically recruited to the Centre for a limited purpose and their capability, as against transferred officers, selected by the Union Public Service Commission after rigorous competitive examination, of tak ing.
over a complete group and directing them to fruitful research was doubtful.
Allowing the writ petitions, the Court, HELD: 1.
Denial of special pay to Class I direct re cruits in the Telecommunication Research Centre amounts to violation of Articles 14 and 16 of the Constitution.
They are entitled to the special pay at the same rates at which it is paid to the transferred officers working in that Centre with effect from the date from which the latter have been drawing it.
[1013B C] 1008 2.1 It is not the case of the Government that the peti tioners are not competent and are not able to discharge their duties.
All the relevant things such as qualifica tions, functions, duties and responsibilities are the same as between the direct recruits and the transferred offi cials.
Their scale of pay is also the same.
[1011G H] 2.2 The special pay is not being paid to the transferred officials for compensating their displacement or for their qualifications.
It is not deputation allowance.
It is paid for the arduous and special nature of the functions to be discharged in the Telecommunication Research Centre.
The rigorous test is applied while transferring them to the Centre to prevent persons of inferior caliber amongst them getting into it.
It does not mean that persons who are directly recruited and working in the Centre are inferior to those who enter the Centre by transfer.
Nor it could be said that the transferred officials had to perform in the Centre duties which were not in their general line.
There was, thus, no justification to deny the special pay at the same rates to the direct recruits working in that Centre.
[1011H; 1012A B; 1013A] Randhir Singh vs Union of India and Others, ; and M.P. Singh & Others vs Union of India, Writ Petition Nos.
13097 13176 of 1984, decided on January 16, 1987, applied.
Union of India to pay special pay to the direct recruits with effect from the date on which the transferred officers commenced to draw it upto date and to continue to pay it in future also as long as the transferred officers continue to get it.
[1013C D]


judgement:
vil Appeal Nos.
2780 81 of 1982 From the Judgment and Order dated 11.6.
1982 of the Karnataka High Court in Writ Petition No.3386 and 3387 of 1981 K.S. Cooper, Dr. Y.S. Chitale, Mrs. P.S. Shroff, S.S. Shroff and Mrs. Kiran Chaudhary for the Appellants.
M. Veerappa, A.K. Sharma, K.N. Singh, S.S. JavaIi, G.P. Shivaprakash and B.P. Singh for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Bangalore was a beautiful city once.
It was a city with magic and charm, with elegant avenues, gorgeous flowers, lovely gardens and plentiful spaces.
Not now.
That was before the invasion of concrete and steel, of soot and smoke, of high rise and the fast buck.
Gone are the flowers, gone are the trees, gone are the avenues.
gone are the spaces.
We are now greeted with tail puffing 1062 chimneys and monstrous high rise buildings, both designed to hurt the eye, the environment and the man.
But they are thought by many as symbols of progress and modernity.
They have come to stay.
Perhaps they are necessary.
Nostalgic sentiments, we suppose, must yield to modern societal re quirements.
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 recreation al 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 avail able 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 cherished character, we are apt to be misun derstood even by some well meaning citizens.
Vested inter ests and busybodies with an easy conscience would in any case rubber wall any consideration of argument because the present time, with the skyrocketing property value, is a great opportunity for them to "make hay".
They would rather sell the city than dwell on its future.
We are not speaking only of the central areas of the city even when we regard them, understandably enough as more precious than the rest of the city.
Nor are we trying to guard the City 's supposed "colonial solitude" which, we know, vanished many decades ago.
We are not afflicted with irrational nostalgia and have no fetish about bungalows and court yards.
We are aware of the dynamics of a modern city.
All that we want and it was ably summed up in your editori al is that we must prevent any more ugliness and haphazard ness, of which we have had more than what Bangalore can take if it is to stay as the City Beautiful, with its planned spaciousness and (still) largely unclustered skyline.
We also want, without any further delay, a vigilant, clearly speltout and scrupulously honest system to ensure an orderly growth of the city, in "Keeping with the capacity of its services, like water supply, drainage and roads".
1063 I entirely agree that for new areas we must provide for more density of population if we are to get adequate mileage from per capital expenditure, and if we are to release sufficient lung spaces for recreational and community activ ities.
In fact, we have long back suggested to City Planners to plan for self contained and self sufficient clusters of multiple storey blocks, with their own plazas, shopping and recreational centers, in carefully selected locations and in keeping with the available services.
Again, there is no doubt that coverage per plot must be systematically reduced through imaginatively formulated bye laws, if we are to continue the garden city character of the City 's new areas.
It is utterly mystifying however, that such obviously valid thoughts and suggestions should end with the plea for "concentrated growth" presumely in the central area of the city and preferably with high rise buildings.
Such growth which is bound to obliterate what we have still left of this beautiful city and put further strains on its traffic, water supply and drainage, is cer tainly not going 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 contribu tion 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 think ing.
After all, we have the City Beautiful because of the future thinking and hard work of the planners and adminis trators." 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 the city of Bangalore Improvement Act, 1945.
Land was acquired and plots were allotted to several people.
A lay out was prepared and conditions were imposed for construction of houses on the sites.
The present appellants as well as the petitioners before the High Court were all of them allottees 1064 from the Improvement Trust Board.
One of the conditions of allotment was that the sites were not to be sub divided and not more than one dwelling house was to be constructed on each of the sites.
Apparently multistoreyed, high rise buildings were not within the contemplation of either the Improvement Trust Borad or the allottees at the time of allotment.
However, the petitioners before the High Court were dismayed to find such high rise buildings coming up in the Raj Mahal Vilas Extension.
Apprehending that there was going to be an invasion of the privacy of the residents of the locality, a disturbance of the peace and tranquility of the residential area, an interference with basic civic amenities consequent on haphazard rise of high rise build ings, and exposing of the residents to all manners of health hazards and interference with their way of living, a number of residents of the locality submitted a memorandum to the Governor and the Chief Minister of the State to take appro priate action to prevent the construction of high rise buildings in a residential area such as the Raj Mahal Vilas Extension.
There was no response from the authorities.
In desperation, some of the persons who submitted the memoran dum resorted to 'Public Interest Litigation ' and filed the writ petitions out of which the present appeals arise.
Their principal complaint was that the Outline Development Plan for Bangalore which had been published in the prescribed manner had been ignored by the authorities in granting permission to the appellants to construct the high rise buildings.
The first of the grounds mentioned in the writ petitions was that permits had been granted to construct eight floor residential buildings going to a height of 80 feet whereas under the regulations the maximum permissible height of a building was only 55 feet.
The inconveniences, discomforts and the hazards to which such a high rise build ing in a residential locality would expose the other resi dents of the locality were explained in the writ petition and writs were sought to quash the permits granted for construction and 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 construc tion.
However, in the special leave petition filed by 1065 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 al lowed 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 petition as a defence to the pulling down of the construc tion.
The order of the Supreme Court was made on 2.6.81.
In W.P. No. 3387 of 1981 the High Court made an interim order on 24.7.81 permitting the appellants in Civil Appeal No. 2781 of 1982 to proceed with the construction subject to the appellants giving an undertaking similar to the undertaking given by the appellants in the other connected appeal.
We find from the judgment of the High Court that in W.P. No. 3386 of 1981 only excavation work had been done by the time of the filing of the petition and that the work was complet ed only after the undertaking was given to the Supreme Court.
In the other case the ground floor had been con structed and pillars had been put up for the next floor when the writ petition was filed.
The work was completed after the undertaking was given to the Division Bench of the High Court.
We may add that again in this Court when the appel lants sought interim orders to enable them to complete the construction during the pendency of the present appeals they gave an undertaking that they would complete the construc tion work of the 4th, 5th, 6th, 7th, and 8th floors at their own risk and cost and that they will raise no objection whatever to this Court passing an order for demolition of the said floors if the Court was ultimately inclined to pass such an order and that they would claim no compensation for demolition, if ordered.
The present appellants contested the writ petitions.
The writ petitions appeared to have been argued in the first instance before a learned single Judge who after hearing the petitions for some considerable time referred them for hearing by a Division Bench.
The Division Bench commenced hearing the writ petitions on 16.3.82 and on 22.3.82 a further contention was raised by the appellants that the Outline Development Plan and the Regulations were never published, consequently they have never become effective and, therefore, there was no need for any compliance with the requirements of the plan and the regulations.
As it turns out this is the only contention which was finally argued before the High Court and before us.
The High Court overruled the contention and declared the licences granted for construction illegal and directed the Commissioner, Corporation of the City of Bangalore to modify the licences so as to bring them in conformity with the Outline Develop ment Plan and the Zonal Regulations appended thereto promul gated under Section 13(4) of the Karnataka 1066 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 Offi cial 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 Devel opment 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 Develop ment Plan and the Regulations became effective as soon as they were approved by the Government under Section 13(3) of the Act irrespective of the date of publication under Sec tion 13(4).
On the other hand, it was submitted by Shri Javali, learned counsel for the writ petitioners in the High Court that there was sufficient publication of the Plan and the Regulations, that the Plan and the Regulations were always kept available for inspection at the office of the concerned authorities and that it was not the case of the appellants originally that there was no publication and that they had no knowledge of the Plan and the Regulations.
It was only after thought, put forward in the course of the arguments at the final stage of the hearing of the writ petitions.
It was submitted that such defect as there was in the publication of the Plan and the Regulations was effec tively cured by Section 76J and the passage of time.
It was also pointed out that the Regulations were an integral part of the Outline Development Plan.
In order to appreciate the rival contentions of the parties, it is necessary to refer to the relevant statutory provisions.
In 1961 the Bangalore Metropolitan Planning Board was formed.
The Board prepared an Outline Development Plan (For short, O.D.P.).
In February 1963 the Mysore Town and Country Planning Act, 1961 came into force with effect from January 15, 1965.
Section 81 A(a) of the Act provides that the Outline Development Plan for the Bangalore Metropolitan Area prepared by the Bangalore Metropolitan Planning Board shall be deemed to be the Outline Develop 1067 ment Plan of the Planning Area comprising the City of Banga lore, prepared under the Act, by the Planning Authority of the Area.
Section 81 (a) further provides that the said plan along with the particulars specified in clauses (ii), (iii), (iv) and (v) of Section 12(2) shall be published and submit ted to the State Government for provisional approval.
Sec tion 81 A(b) provides that on receipt of the plan and particulars, the State Government shall after making such modifications as it deems fit, return the plan and the particulars to the Planning Authority, which shall thereupon take further action in accordance with the provisions of Section 13.
Section 2(3) defines 'land use ' to mean the major use to which a plot of land is being used on any specified date.
Section 2(4) defines 'notification ' to mean a notification published in the Official Gazette. 'Planning Area ' is de fined 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 consti tuted 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 govern ing 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 publication in the Official Gazette and is also required to publish in the prescribed manner an invitation to the public to make sug gestions.
All suggestions made in response to the invitation within the prescribed period are required to be considered by the Planning Authority before submitting the plan to the State Government.
Section 12 deals with the contents of Outline Development Plan and we think it necessary to ex tract here the whole of the section.
Section 13 deals with approval of the Outline Development Plan and we think that it is necessary to extract Section 13 also.
Sections 12 and 13 are as follows: 1068 "section 12.
Contents of Outline Development Plan (1) An Outline Development Plan shall generally indicate the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority are to be carried out and regulated.
In particular it shall include, (a) a general land use plan and zoning of land use for residential, commercial, indus trial, agricultural, recreational, educational and other public purposes; (b) proposals for roads and highways; (c) proposals for the reservation of land for the purposes of the Union, any State, any local authority or any other authority estab lished by law in India; (d) proposals for declaring certain areas as areas of special control, development in such areas being subject to such regulations as may be made in regard to building line, height of buildings, floor area ratio, architectural features and such other particulars as may be prescribed; (e) such other proposals for public or other purposes as may from time to time be approved by the Planning Authority or directed by the State Government in this behalf.
Explanation 'building line ' means the line up to which the plinth of a building adjoining a street may lawfully extend and includes the lines prescribed, if any, in any scheme.
(2) The following particulars shall be published and sent to the State Government through the Director along with the Outline Development Plan, namely: (i) a report of the surveys carried out by the Planning Authority before the preparation of such plan; (ii) a report explaining the provisions of such Plan; (iii) regulations in respect of each land use zone to enforce 1069 the provisions of such plan and explaining the manner in which necessary permission 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 in volved in the acquisition of lands reserved for public purposes." "S.13.
Approval of the Outline Development Plan (1) On receipt of the Outline Develop ment 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 pub lished under subsection (2) of Section 9 the State Government after making such modifica tions as it deems fit or as may be advised by the Director, shall return through the Direc tor, the plan and the particulars to the Planning Authority, which shall thereupon pub lish, by notification, the plan and the par ticulars 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 Au thority any comments on the plan and the regulations, the Planning Authority shall consider such comments and resubmit the plan and the regulations to the State Government, through the Director with recommendations for such modifications in the plan and regulations as it considers necessary in the light of the public comments made on the plan and regula tions.
(3) The State Government, after receiving the plan and the regulations and the recommen dation for modifications from the Planning Authority, shall in consultation with the Director, give its final approval to the plan and the regulations with such modifications as the Director may advice in the light of the comments and the recommendations of the Plan ning Authority or otherwise.
(4) The Planning Authority, shall then publish in the 1070 prescribed manner the Outline Development Plan and the Regulations as approved by the Govern ment.
The plan and the particulars shall be permanently displayed in the offices of the Director and the Planning Authority and a copy shall be kept available for inspection of the public at the office of the Planning Authori ty.
" Section 14 speaks of 'Enforcement of the Outline Devel opment Plan and the Regulations '.
Section 14(1) prescribes that on and from the date on which a declaration of inten tion to prepare an outline is published under sub section (1) of Section 10, every land use, every change in land use and every development in the area shall conform to the provisions of the Act, the Outline Development Plan and the Regulations as finally approved by the State Government under subsection (3) of Section 13.
The only other provision of the Act to which reference is necessary is, what we may call the, "Ganga" clause*, Section 76J which provides for 'Validation of acts and proceedings '.
It is as follows: "76 J. Validation of acts and proceedings No act done or proceeding taken under this Act shall be questioned on the ground merely of, (a) the existence of any vacancy in, or any defect in the constitution of the Board or any Planning Authority; (b) any person having ceased to be a member; (c) any person associated with the Board or any planning authority under section 4F having voted in contravention of the said section; or (d) the failure to serve a notice on any person, where no substantial injustice has resulted from such failure; or (e) any omission, defect or irregularity not affecting the merits of the case.
" We may also refer here to the rules relating to publica tion.
Rule 32 provides for "publication of Outline Develop ment Plan under sub 1 ' According to Hindu tradition the waters of the Ganga purify, cleans the sins and remedy all insufficiencies.
1071 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 pub lish 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 OF OUTLINE DEVELOPMENT PLAN Notice is hereby given that an Outline Development Plan of . . . area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963) and a copy thereof is available for inspection at the office of the Planning Authority during office hours.
If there be any objection or suggestion in respect of the Outline Development Plan, it should be lodged on or before the . .
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.
" We said earlier that the Outline Development Plan for the Bangalore Metropolitan Area was prepared by the Banga lore Metropolitan Planning Board and that under Section 81J of the Mysore Town and Country Planning Act, it was deemed to be the Outline Development Plan of the planning area comprising the city of Bangalore, prepared under the Act, by the Planning Authority of such 1072 area.
A 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette on 21.12.1967 in Form II.
It was as follows: "OFFICE OF THE PLANNING AUTHORITY BANGALORE CITY, PLANNING AREA, BAN GALORE 9 Notice of Publication of Outline Development Plan Notice is hereby given that an Outline Development Plan of Bagalore City Planning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963) and a copy thereof is available for inspection at the office of the Planning Authority in Seshadri Road, Bangalore City during office hours.
If there be any objection or sugges tion in respect of the Outline Development Plan, it should be lodged on or before the 15th day of February, 1968.
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.
K. Balasubramanyam CHAIRMAN" After the State Government provisionally approved the Plan 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette dated 10.10.68 again in Form II.
The Notification was in the following terms: "OFFICE OF THE CHAIRMAN, PLANNING AUTHORITY BANGALORE CITY PLANNING AREA, BANGALORE 9 Notice of Publication of Outline Development Plan.
Notice is hereby given that an Out line Development Plan of Bangalore City Plan ning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963).
The said Plan has been provi sion 1073 ally 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 sugges tion 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 PLAN NING AUTHORITY" It appears that in response to the invitation to file objec tions, 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 1972.
Notice of Publication of Outline Development Plan.
In pursuance of Rule 33 of the Mysore Planning Authority Rules 1965 Notice is hereby given that an Outline Development Plan of Bangalore City Planning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963).
The said plan has been finally approved by the Govern ment of Mysore as per Section 13(3) 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 Sesha dri Road, Bangalore City, during office hours.
1074 M.S. Ramachandra Chairman Planning Authority.
" It is seen that 'at every stage the public were informed by notices published in the Official Gazette that the Outline Development Plan was available for inspection at the office of the Planning Authority, though it is not disputed that the Plan and the Regulations themselves were never published as such in the Gazette.
The question for consideration is whether the intimation to the public through the Official Gazette that the Outline Development Plan was available for inspection at the office of the Planning Authority is a sufficient compliance with the requirement of Section 13(4) regulating the publication of the approved Plan and Regula tions? There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compli ance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes.
Whether law is viewed from the stand point of the 'conscientious good man ' seeking to abide by the law or from the standpoint of Justice Holmes 's 'Uncon scientious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.
We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation.
But unlike Parlia mentary Legislation which is publicly made, delegated or subordinate legislation is often made, unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary.
It is, therefore, necessary that subordinate legislation, in order to take effect, must be published 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 publi cation, 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 publi cation.
There may be subordinate legislation which is con cerned with a 1075 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 Regulations to be published in the prescribed manner and the Plan and particulars to be permanently displayed in the offices of the Director and the Planning Authority and a copy to be kept available for the inspection of the public at the office of the Planning Authority.
The particulars referred to, we presume, are the particulars mentioned in Section 12(2) of the Act consisting of various reports, including the Regulations. 'The prescribed manner ' is what is prescribed by Rule 33, that is, publication in the Offi cial Gazette.
If we now turn to Section 9(1) and 9(2), we find that there too the the Outline Development Plan is required to be published in 'the prescribed manner '.
The prescribed manner for the purposes of sub sections (1) and (2) of Section 9 is that prescribed by Rule 32.
Rule 32 we have seen prescribes making a copy of the Plan available for inspection, publishing a notice in Form No. II in the Offi cial Gazette and in one or more newspapers and displaying a notice in Form No. II at the office of Planning Authority and at other specified places.
It is true that Rule 33 speaks of publication of approved Outline Development Plan and Regulations in the Official Gazette, suggestive of a requirement that the Outline Development Plan and Regula tions should bodily be incorporated in the Official Gazette.
But if the entire scheme of the Act and the rules is consid ered as an integral whole it becomes obvious that what Section 13(4) contemplates besides permanently displaying the plan and the particulars in the offices of Director and Planning Authority and keeping available a copy for the inspection of the public at the office of Planning Authority is a public notice to the general public that the Plan and Regulations are permanently displayed and are available for inspection by the public.
Such public notice is required to be given by a publication in the Official Gazette, This is how it was understood by the authorities and everyone else concerned and this is how it was done in the present case.
This appears to be a reasonable and a rational interpreta tion on Section 13(4) and Rule 33 in the setting and the scheme.
We are of the view that there was compliance with the requirements of Section 13(4) and Rule 33.
We have earlier mentioned that Section 13(1) requires the provision al Outline Development Plan * See Narayana Reddy, vs State of Andhra Pradesh = 1969 (1) Andhra Weekly Reporter 77.
1076 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 considera ble 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 vs National Co. Ltd. & Ors., and Firestone Tyre & Rubber Co. vs Synthetics & Chemicals Ltd. & Ors., [1971] 41 Company cases 377 to urge that offer of inspection cannot be a substitute for publication.
We do not think that these two cases are of assistance to Shri Cooper.
What was laid down in those cases was the mandatory require ment of a full and frank disclosure of the relevant facts, in the explanatory note attached to the notice convening a general meeting of the company cannot be circumvented by an offer of inspection.
Another case to which Shri Cooper drew our attention was Municipal Board, Pushkar vs State Trans port Authority, Rajasthan & Ors., [1963] Suppl.
2 S.C.R. 373.
In that case the question arose as to what was to be treated as the date of the order of the Regional Transport Authority.
Was it the date of the resolution of the Regional Transport Authority or was it the date on which the resolu tion was brought into effect by publication of the notifica tion? The answer was that it was the date of the publication of the notification.
In Joint Chief Controller of Imports & Exports, Madras vs M/s. Aminchand Mutha etc.
; , another case on which Shri Cooper relied, the Court held that there was no order prohibiting the import of fountain pens, since in fact no such order had been pub lished and no such order was brought to the notice of the Court.
All that was available was an entry 'nil ' against fountain pens in the declaration of policy as to import.
We are unable to see how these two cases can be of any help to Shri Cooper.
Shri Cooper also invited our attention to cases drawing a distinction between mandatory and directory statu tory requirements but those cases again are of no avail to him in the view that we have taken.
We also desire to state that the effect of the non perfor 1077 mance of a duty imposed by a statute in the manner pre scribed by the statute is not discovered by a simple answer to the question whether the statute is mandatory or directo ry.
These are not simple chemical reactions.
The question whether a statutory requirement is mandatory or directory cannot itself be answered easily as was pointed out more than a century ago in Liverpool Borough vs Turner, ; Many considerations must prevail and the object and the context are the most important.
The High Court was of the view that such defect as there was in regard to publication of the Plan was cured by Sec tion 76J, ' the Omnibus Curative clause to which we earlier made a reference 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 statu tory 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 vs Corporation of the City of Bangalore and Municipal Board, Sitapur vs Prayag Narain Saigal & Firm Moosaram Bhagwandas, ; 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 or proceeding taken under the Act shall be questioned merely on the ground of any defect or irregulari ty in such act or proceeding, not affecting the merits of the case.
The Court said that the resolution had been pub lished in the newspapers and was communicated to those affected and failure to publish the resolution did not affect the merits of its imposition and failure to notify the resolution in the Gazette was not fatal to the legality of the imposition.
In the second case it was held that the non publication of a special resolution imposing a tax was a mere irregularity, since the inhabitants had no fight to object to special resolutions and had otherwise clear notice of the imposition of the tax.
It is true that both these cases relate to non publication of a resolution regarding imposition of a tax where the imposition of a tax was other wise well known to the public.
In the present case the situation may not be the same but there certainly was an effort to bring the Plan 1078 and regulations to the notice of the public by giving notice of the Plan in the Official Gazette.
Non publication of the Plan in the Official Gazette was therefore a curable defect capable of being cured by Section 76J.
It is here that the failure of the appellants to plead want of publication or want to knowledge in the first instance assumes importance.
In the answer to the Writ Petitions, the appellants took up the substantial plea that they had complied with the re quirements of the Outline Development Plan and the Regula tions but not that they had no knowledge of any such re quirement.
It can safely be said that the defect or irregu larity did not affect the merits of the case.
Finally, one last submission of Shri Cooper requires to be examined.
Shri Cooper submitted that Section 13(1) used the words "the Plan and the particulars", Section 13(2) used the Words "the Plan and the Regulations," Section 13(3) used the words "the Plan and the Regulations" and Section 13(4) used the words, "the Outline Development Plan and the Regu lations" as well as the words, "the Plan and the Regula tions".
This, according to Shri Cooper, signified that the particulars and the Regulations are not to be treated as part of the Plan but as creations distinct from the Plan.
We do not think that we are entitled to split the unity and identity of the plan as suggested by the learned counsel.
The Outline Development 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 dis tinction between the Plan and the Regulations to suggest that in the notice published on 27.6.72, the Planning Au thority mentioned that the Plan was available for inspection at the office of the Planning Authority but made no refer ence to the Regulations and, therefore, it must be consid ered that the Regulations were not made 1079 available for inspection and so never published.
We do not think that it is possible to reach the conclusion suggested by Shri Cooper from the absence of the reference to the Regulations in the notice.
The Authorities justifiably always treated the Plan as including the Regulations and we are satisfied that what was kept for inspection was the Plan along with the Regulations.
Shri Cooper argued that neither the Municipal Corpora tion nor any other civic authority appeared to be aware of the Outline Development Plan and the Regulations as was evident from the circumstance that in the years that passed since the approval of the Plan by the Government and before the writ petitions were filed, as many as 57 building li cences had admittedly been issued in contravention of the Regulations.
It may be that notwithstanding the Regulations some building licences were granted in contravention of the Regulations but that only exposes the deplorable laxity of the concerned authorities and emphasises the need for great er public vigilance.
The present Writ Petitions, we hope, are forerunners of such vigilance.
In the result we find no merit in the appeals which are accordingly dismissed with costs.
The judgment of the High Court will now be given effect by the authorities, taking note of the several undertakings given to the High Court and this Court at various stages.
A.P.J. Appeals dismissed.

dataset_name: IN-Abs

summary:
In 1961 the Bangalore Metropolitan Board was formed.
The Board prepared an Outline Development Plan (O.D.P.).
In February, 1963, the Mysore Town and Country Planning Act, 1961 came into force with effect from January 15, 1965.
Section 81 A(a) of the Act provides that the Outline Devel opment Plan for the Bangalore Metropolitan Area prepared by the Bangalore Metropolitan Planning Board shall be deemed to be the Outline Development Plan of the Planning Area com prising the City of Bangalore, prepared under the Act, by the Planning Authority of the Area.
Section 81 A(a) further provides 'that the said plan alongwith the particulars specified in clauses (ii), (iii), (iv) 1055 and (v) of section 12(2) shall be published and submitted to the State Government for provisional approval.
Section 81 A(b) provides that on receipt of the plan and the particulars, the State Government shall after making such modifications as it deems fit, return the plan and the particulars to the Planning Authority for taking further action in accordance with the provisions of section 13.
Section 13 deals with approval of the Outline Development Plan.
Section 76J provides for "validation of acts and proceedings".
Rule 32 of the Mysore Planning Authority Rules, 1965 provides for "publication of Outline Development Plan under sub.s.(1) and sub s.(2) of s.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 Publica tion under s.9(2) is also required to be made in the same manner.
Rule 33 provides for 'Publication of Outline Devel opment Plan and Regulations under s.13(4), and stipulates that the Outline Development Plan and the Regulations as approved by the State Government under sub s.(3) ors.13 shall be published in the Official Gazette.
A 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette dated 21.12.1967 in Form II.
After the State Government provisionally approved the Plan, 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette dated 10.10.1968 again in Form II.
In response to the invitation to file objec tions, 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 13.7.72.
The Bangalore Improvement Trust Board desired to develop Raj Mahal Vilas Extension under the provisions of the City of Bangalore Improvement Act, 1945.
Land was acquired and plots were alloted to several people.
A lay out plan was prepared and conditions were imposed for construction of houses on the sites.
One of the conditions of allotment was that the sites were not to be sub divided and not more than one dwelling house was to be constructed on each of the sites.
Apparently multistoreyed, high rise buildings were not within the contemplation of either the Improvement Trust Board or the allotees at the time of allotment.
However, High buildings came up.
A number of residents of the locali ty submitted a memorandum to the Governor and 1056 the Chief Minister to take an appropriate action to prevent construction of high rise buildings in residential area of Raj Mahal Vilas Extention.
Since there was no response some persons resorted to 'Public Interest Litigation, by filing writ petitions alleging that the Outline Development Plan for Bangalore which had been published in the prescribed manner had been ignored by the authorities in granting permission to the appellants to construct the high rise buildings and that permits had been granted to construct eight floor residential buildings going to a height of 80 feet whereas under the regulations the maximum permissible height of a building was only 55 feet.
Writs were sought to quash the permits granted for construction, to restrain the appellants from constructing the eight floor buildings, to direct them to demolish the structures already put up and to require the Bangalore Urban Area Commission to recommend to the State Government against the construction of highrise buildings in any of the existing extensions of Banglore.
The High Court allowed the petitions and declared the licences granted for constructions illegal and directed the Commissioner, Corporation of the City of Bangalore to modify the licences os as to bring them in confirmity with the Outline Development Plan and the Zonal Regulations appended thereto promulgated under s.13(4) of the Karnataka Town and Country Planning Act and take all consequential actions in accordance with law.
In the appeal to this Court, on behalf of the appellants it was contended: (1) that publication of the Outline Devel opment Plan and the Regulations in the prescribed manner, that is, in the Official Gazette was mandatory under section i3(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; (2) that the Regulations were distinct from the Outline Develop ment Plan and that in the case of the Regulations, there was no attempt whatever at publication; (3) that the High Court was in error in holding that s.76 J cured whatever defect there was in regard to the publication of the Plan and the Regulations and that the Outline Development Plan and the Regulations became effective as soon as they were approved by the Government under section 13(3) of the Act irrespective of the date of publication under s.13(4); (4) that offer of inspection cannot be a substitute for publication; (5) that section 13(1) used the words "the Plan and the particulars", section 13(2) used the words "the Plan and the the Regulations".
s.13(3) used the words "the Plan and the Regulations" and s.13(4) used the words "the Out 1057 line Development Plan and the Regulations" as well as the words "the Plan and the Regulations" and this signified that the particulars and the Regulations are not to be treated as part of the plan but as creations distinct from the Plan.
In the notice published on 27.6.1972, the Planning Authority mentioned that the Plan was available for inspection at the office of the planning authority but made no reference to the Regulations and, therefore, it must be considered that the Regulations were not made available for inspection and so never published; and (6) that neither the Municipal Corporation nor any other Civic Authority appeared to be aware of the Outline Development Plan and the Regulations as was evident from the circumstances that in the years that passed since the approval of the Plan by the Government and before the writ petitions were filed, as many as 57 build ings licences had admittedly been issued in contravention of the Regulations.
On behalf of the respondents it was contended: (1) that there was sufficient publication of the Plan and the Regula tions, that the Plan and Regulations were always kept avail able for inspection at the office of the concerned authori ties and that it was not the case of the appellants origi nally that there was no publication and that they had no knowledge of the Plan and the Regulations: (2) that the defect in the publication of the Plan and the Regulations was effectively cured by s.76J and the passage of time; and (3) that the Regulations were integral part of the Outline Development Plan.
Dismissing the Appeal, HELD 1.
There was compliance with the requirements of section 13(4) of the Mysore Town and Country Planning Act, 1961 and Rule 33 of the Mysore Planning Authority Rules, 1965.
[1075G] 2.
At every stage the public were informed by notices published in the Official Gazette that the Outline Develop ment Plan was available for inspection at the office of the Planning Authority.
[1078H] 3.
The Authorities justifiably always treated the Plan as including the Regulations and what was kept for inspec tion was the Plan alongwith the Regulations.
[1079A B] 4.(i) Where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and addi tions made to it by various processes.
Whether law is viewed from the standpoint of the 1058 'conscientious good man ' seeking to abide by law or from the standpoint of Justice Holmes 's 'unconscentious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.
[1074C E] 4.(ii) Delegated or subordinate Legislation is all pervasive and there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation.
But unlike Parliamentary Legisla tion which is publicly made, delegated or subordinate Legis lation, is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary.
It is, therefore, necessary that subordinate Legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publica tion or promulgation is prescribed by the parent statute or not.
[1074E F] 4.(iii) 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 from 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.
[1074F H; 1075A] 4.(iv) In the present case, s.13(4) has prescribed the mode of publication of Outline Development Plan and the Regulations.
It requires the Outline Development Plan and the Regulations to be published in the prescribed manner and the Plan and particulars to be permanently displayed in the office of the Director and the Planning Authority and a copy to be kept available for the inspection of the public at the office of the Planning Authority.
The particulars referred to presumably are the particulars mentioned in section 12(2) of the Act consisting of various reports, including the Regula tions. 'The prescribed manner ' is what is prescribed by Rule 33, that is, publication in the Official Gazette.
[1075A C] 4.(v) Under s.9(1) and 9(2) also the Outline Development Plan is 1059 required to be published in 'the prescribed manner '.
The prescribed manner for the purposes of sub s.(1) and (2) of s.9 is that prescribed by Rule 32.
Rule 32 prescribes making a copy of the Plan available for inspection, publishing a notice in Form No. II in the Official Gazette and in one or more newspapers and displaying a notice in Form No.11 at the office of the Planning Authority and at other specified places.
[1075C E] 4.(vi) Rule 33 speaks of publication of approved Outline Development Plan and Regulations in the Official Gazette suggestive of a requirement that the Outline Development Plan and Regulations should bodily be incorporated in the Official Gazette.
But if the entire scheme of the Act and the rule is considered as an integral whole it becomes obvious that what section 13(4) contemplates besides permanently displaying the Plan and the particulars in the offices of Director and Planning Authority and keeping available a copy for the inspection of the public at the office of Planning Authority, is a.public notice to the general public that the Plan and Regulations are permanently displayed and are available for inspection by the public.
Such public notice is required to be given by a publication in the Official Gazette.
This is how it was understood by the authority and everyone else concerned and this is how it was done in the present case.
This appears to be a reasonable and a rational interpretation of s.13(4) and Rule 33 in the setting and the scheme.
[1075D H] 4.(vii) Section 13(1) requires the provisional Outline Development Plan and particulars to be published by notifi cation in the Official Gazette with a view to invite com ments from the public.
What was published in the present case under s.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 repre sentations from individuals and Institutions were received.
Therefore everyone concerned, i.e., 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 availability for inspection of the Plan and particulars was all that was contemplated by the provisions providing for publication.
There is no reason or justifica tion to adopt an interpretation which departs from common understanding of the Act and the Rules.
[1075H; 1076A C] Shalagram Jhajharia vs National Co. Ltd. & Ors., , Firestone Tyre & Rubber Co. vs Syn thetics & Chemicals Ltd. & Ors., ,Municipal Board, Pushkar vs State Transport Authority, Rajasthan & Ors., [1963] Suppl.
2 1060 S.C.R. 373 and Joint Chief Controller of Imports & Exports, Madras vs M/s. Aminchand Mutha etc.
; , , distinguished.
The effect of the non performance of a duty imposed by a statute in the manner prescribed by the statute is not discovered by a simple answer to the question whether the statute is mandatory or directory.
These are not simple chemical reactions.
The question whether a statutory re quirement is mandatory or directory cannot itself be an swered easily.
Many considerations must prevail and the object and the context are the most important.
[1077A B] Liverpool Borough vs Turner, ; , referred to.
6.(i) The High Court was of the view that such defect as there was in regard to publication of the Plan was cured by s.76J, the Omnibus Curative clause, called by this Court as the "Ganga" clause.
Provisions similar to s.76J are found in several modern Acts and their object is to put beyond chal lenge defects of constitution of statutory bodies and de fects of procedure which have not led to any substantial prejudice.
A defective publication which has otherwise served its purpose is not sufficient to render i1legal what is published and that such defect is cured by Section 76 J. [1077B D] Bangalore Woollen, Cotton & Silk Mills Co. Ltd. Banga lore vs Corporation of the City of Bangalore, and Municipal Board, 'Sitapur vs Prayag Narain Saigal & Firms Moosaram Bhagwandas, ; , followed.
6.(ii) In the present case, there certainly was an effort to bring the Plan and Regulations to the notice of the public by giving notice of the Plan in the Official Gazette.
Non publication of the Plan in the Official Gazette was, therefore, a curable defect capable of being cured by s.76J. [1077H; 1078A B] 7.
Failure of the appellants to plead want of publica tion or want of knowledge assumes importance.
In the answer to the Writ Petitions, the appellants took up the substan tial plea that they had complied with the requirements of the Outline Development Plan and the Regulations but not that they had no knowledge of any such requirement.
It can safely be said that the defect or irregularity did not effect the merits of the case.
[1078B] 8.
The Outline Development Plan and the Regulations are not 1061 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 s.13, where 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 tile 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 Regula tions are not to be treated as not constituting part of the Plan even as when a building is sold along with the fix tures, it does not mean that the fixtures are not treated as part of the building.
[1078D G] 9.
Notwithstanding the Regulations some building li cences were granted in contravention of the Regulations but that only exposes the deplorable laxity of the concerned authorities and emphasises the need for greater public vigilance.
The present Writ Petitions are forerunners of such vigilance.
[1079C D]


judgement:
Criminal Appeal No. 13 of 1981 From the Judgment and Order dated 26.3.1979 of the Allahabad High Court in Crl.
Petition No. 1816 of 1976 Altar Ahmad for the Appellant (not present).
V.A. Bobde (Amicus Curiae) for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
This is an unfortunate case where the High Court has quashed an order of maintenance passed in favour of a minor child Tarana Farooq by the Special Judicial Magistrate No. 1, Rampur under Section 125 Cr.
P.C., in exercise of its powers under Section 482 Cr.
The High Court has, however, deemed it fit to grant a certificate to the appellant Dukhtar Jahan, the mother of the minor child, under Article 134(1)(c) read with Article 134A of the Con stitution to prefer an appeal to this Court for considera tion of a question of law formulated as under: "Whether, in an application under Section 482 Cr.
P.C. the High Court can interfere with concurrent findings rendered by the courts below." As we find the appeal is capable of being disposed of on the basis of other materials, we do not feel called upon to answer the question of law formulated for consideration by the High Court.
We may now have a look at the facts of the case.
The appellant Dukhtar Jahan and the respondent Mohammed Farooq who were already related as first cousins, being the issues of two sisters, were married on 11.5.1973.
The marriage lasted only for about 17 months 1090 since the respondent divorced the appellant on 16.10.1974.
However, when the parties were in wedlock the appellant delivered a female child named Tarana Farooq on 5.12.1973.
After the respondent effected the divorce in October 1974, the appellant filed a petition under Section 125 Cr.
P.C. in the court of the Special Judicial Magistrate No. 1, Rampur for grant of maintenance to her and the child at Rs. 150 p.m. and Rs.50 p.m. respectively.
The appellant however gave up the claim of maintenance for herself as the stand of the respondent was that he had paid her the Maher and the amount payable for the Iddat period and that he had also returned all the articles given by way of dowry.
The enquiry in the petition was therefore, confined to the claim of maintenance for the child Tarana.
The respondent refuted his liability to provide mainte nance to the child on the ground that he was not the father of the child and that the child had been conceived even before marriage and the appellant had suppressed the fact of her being enceinte at the time of the marriage.
While the appellant examined herself and another witness to substantiate the claim for maintenance for the child, the respondent examined three witnesses besides himself to refute the claim.
Of those three witnesses, two have spoken about the payment of Maher etc.
to the appellant and hence we need mention only about the testimony of D.W.2 Abdul Asad.
This witness was a Panchayat Sevak and he has deposed that he made entries in the birth register (Exhibit Kha I) about the birth of the girl child Tarana Farooq to the respondent and the appellant on the basis of information given to him by the Village chowkidar by name Kalicharan.
Obviously this witness has been examined to show that the respondent was not the informant of the birth of the child in order to neutralise the effect of the entry in the birth register.
The Trial Magistrate, after taking into consideration the evidence adduced in the case and the conduct of the parties held that since the child had been born when the parents were in wedlock and since the respondent had not discarded the wife or disowned the child forthwith but had waited for about 10 months to divorce the appellant, it would be reasonable to hold that the child should have been conceived to the respondent and as such he is by law obli gated to provide maintenance to the child.
After taking into consideration the respondent 's income the learned Magistrate awarded maintenance to the child at Rs.30 per month as against the claim of Rs.50 p.m. 1091 A Revision preferred against the order of the Magistrate to the Sessions Judge, Rampur proved of no avail and hence the respondent filed Criminal Misc.
Petition No. 1816 of 1978 to the High Court of Calcutta under Section 482 Cr.
P.C. for quashing the order of maintenance.
A Single Judge of the High Court has allowed the petition and quashed the order of maintenance in favour of the child.
The learned Judge has taken the view that since the child had been born in about 7 months ' time from the date of marriage and since the child was not claimed to be prematurely born it has to be neces sarily held that the appellant should have conceived even before she married the respondent and consequently the respondent cannot be held to be the father of the child and called upon to pay maintenance to it.
As the order of the High court appeared to be prima facie unsustainable and as the respondent failed to enter appearance in spite of notice being served on him, we re quested Mr. Bobde to appear as amicus curiae for the re spondent, and we are thankful to him for his assistance.
The admitted facts are that the appellant and the re spondent were close relations and not strangers before marriage.
They were married on 11.5.1973 and the girl child was born on 5.12.1973.
The respondent did not divorce the appellant immediately after the child birth or even two or three months later but he divorced her only on 16.10.
The child birth took place in the house of the respondent himself and hence there is no question of the birth of the child not being known to the respondent immediately.
In spite of all these factors the High Court has allowed itself to be influenced by only two factors viz. the child birth taking place in about 7 months ' time from the date of marriage and the child being claimed to be a full grown one at the time of birth.
Examining the matter, we feel the learned Judge has failed to view the case in its entire conspectus and this has led to miscarriage of justice.
On the sole ground that the child had been born in about 7 months ' time after the marriage it cannot be concluded that the child should have been conceived even before the respondent had consummated the marriage.
Giving birth to a viable child after 28 weeks ' duration of pregnancy is not biologically an improbable or impossible event.
In "Combined Textbook of Obstetrics and Gynaecology" by Sir Gugald Baird 7th Edition at page 162 it is reported as under: 1092 "In the case of Clark vs Clark (1939) an extremely small baby, born alive 174 days after last possible date when intercourse with the husband could have taken place, and which survived, was held to be legitimate.
While it is most unusual for babies of this weight for gestation period to survive it does occasion ally happen.
" The learned Judge ought not, therefore, to have rushed to the conclusion that a child born in about 7 months ' time after the marriage of the parents should have necessarily been conceived even before the marriage took place.
In so far as the second aspect is concerned viz. about the appel lant 's statement that the child was not born prematurely, the High Court has failed to bear in mind that the appellant is a rustic and illiterate woman and as such her opinion could suffer from error of judgment.
Another serious infirmity noticed in the judgment is that the learned Judge has completely lost sight of Section 112 of the Indian Evidence Act.
Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hun dred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotton.
This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitima tion of the child would result in rank injustice to the father.
Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.
To drive home the point, we may refer to some of the reported cases where the courts have applied the rule of evidence contained in Section 112 of the Indian Evidence Act and declared the legitimacy of a child born during wedlock, even though the child had been born prematurely.
In Mahbub Ali vs Taj Khan,, A.I.R. 1915 Lahore 77 (2) it was held that a boy born about 7 months ' after his father and mother were lawfully married and who had opportunity or access to each other at the time he could have been begotten, must be held to be the legitimate son of his parents.
In Kahan Singh vs Natha Singh, A.I.R. 1093 1925 Lahore 414 the defendant 's father was married to the defendant 's mother on 2nd August 1889 and the defendant was born on 23rd January 1890.
Even so it was held "that the defendant being born during the continuance of the marriage between his parents, he is his father 's legitimate son unless it is shown that his parents had no access to each other at any time when he could have been begotten and that it is immaterial how soon after the marriage the defendant was born." In Sibt Mohammad vs Md. Hameed, A.I.R. 1926 Allahabad 589 it was held that a Muhammedan child born during the continuance of a valid marriage between its parents but within 6 months of the date of its parents ' marriage must be held to be a legitimate child by reason of Section 112 of the Evidence Act.
In Ponnammal vs Addi Aiyan, A.I.R. 1953 TRA CO 434 [Vol. 40, C.N. 169] the paternity of a child born to a married woman after 8 months ' from the date of marriage was disputed as the husband alleged that he was incapacitated from having sexual intercourse for one month from date of marriage due to some operation he had to undergo and hence the child was not his.
The court held that even assuming that the husband was so incapacitated, the time available, viz, over seven months, was sufficient to raise the presumption that he was the father of the child.
Even without reference to Section 112 of the Indian Evidence Act if we take into consideration the facts of the case and the conduct of the parties and the attendant cir cumstances we find a preponderance of materials to support the case of the appellant rather than that of the respond ent.
The relevant features which have escaped the attention of the High Court can be catalogued as under: If the appellant was pregnant even at the time of the marriage she could not have concealed that fact for long and in any event the respondent would have come to know of it within two or three months of the marriage and thereupon he would have immediately protested and either discarded the appellant or reported the matter to the village elders and relatives and sought for a divorce.
On the contrary the respondent had continued to lead life with the appellant in a normal manner till the birth of the child.
Even the con finement appears to have taken place in his house as other wise the child 's birth would not have been registered in his village.
The respondent had not disowned the child immedi ately after its birth or sent away the appellant to her parents ' house.
Such would not have been his conduct if he had any doubt about the paternity of the child.
Moreover, there is an entry in 1094 the birth register (Exhibit Kha 1) setting out the respond ent as the father of the child.
Though the respondent has attempted to neutralise the entry in Exhibit Kha 1 by exam ining D.W.2 and making it appear that the entry had been made on the basis of information given by a third party, the lower courts have refused to give credence to the vague and uncorroborated testimony of D.W.2.
It is also significant to note that the respondent had allowed eleven months to pass before effecting a divorce.
By his inaction for such a long period the respondent has given room for inference that the divorce may have been effected for other reasons and not on account of the appellant giving birth to a child conceived through some one else.
Lastly, even if the child had been born after a full term pregnancy it has to be born in mind that the possibility of the respondent having had access to the appellant before marriage cannot be ruled out because they were closely related and would therefore have been moving in close terms.
All these factors negate the plea of the respondent that the minor child was not lathered by him.
The proper course for the High Court, even if entitled to interfere with the concurrent findings of the courts below in exercise of its powers under Section 482 Cr.P.C., should have been to sustain the order of maintenance and direct the respondent to seek an appropriate declaration in the Civil Court, after a full fledged trial, that the child was not born to him and as such he is not legally liable to maintain it.
Proceedings under Section 125 Cr.
P.C., it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.
The High Court was, therefore, clearly in error in quashing the order of maintenance, in favour of the child.
The appeal has, therefore, to succeed and we accordingly allow the appeal and set aside the order of the High Court and restore the order of maintenance passed by the trial court.
S.R. Appeal allowed.

summary:
The appellant and the respondent, who were already related as lint cousins being the issues of two sisters, were married on 11.5.1973.
The marriage lasted only for 17 months, since the respondent divorced the appellant on 16.10.1974.
When the parties were in wedlock, the appellant delivered a female child on 5.12.1973.
After the Respondent effected the divorce in October, 1974, the appellant tiled a Petition under section 125 Criminal Procedure Code in the Court of the Special Judicial Magistrate No. 1, Ramput for grant of maintenance of Rs.50 p.m. to the child.
The respondent refuted his liability to provide mainte nance to the child on the ground that he was not the father of the child and that the child had been conceived even before marriage and the appellant had suppressed the fact of her being enceinte at the time of the marriage.
The Trial Magistrate after taking into consideration the evidence adduced in the case and the conduct of the parties held that since the child had been born when the parents were in wedlock and since the respondent had not discarded the wife or disowned the child forthwith but had waited for about 10 months to divorce the appellant, it would be rea sonable to hold that the child should have been conceived to the 1087 respondent and as such he is by law obligated to provide maintenance to the child.
He accordingly awarded maintenance to the child Rs.30 p.m. as against the claim of Rs. 50 p.m.
A Revision Petition preferred against the order of the Magistrate to the Sessions Judge, Rampur proved of no avail and hence the respondent filed Criminal Misc.
Petition No. 1816 of 1978 to the High Court of Calcutta under section 482 Cr.
P.C. for quashing the order of maintenance.
A Single Judge of the High Court allowed the petition and quashed the order of maintenance in favour of the child, by taking the view that since the child had been born in about 7 months ' time from the date of marriage and since the child was not claimed to be prematurely born it has to be necessarily held that the appellant should have conceived even before she married the respondent and consequently the respondent cannot be held to be the father of the child and called upon to pay maintenance to it.
However the High Court granted a certificate under Article 134 (1)(c) read with Article I34A of the Constitution to the appellant to prefer an appeal for consideration of a question of law formulated as "Whether, in an application under Section 482 Cr.
P.C. the High Court can interfere with concurrent findings rendered by the courts below. ' ' Allowing the appeal, the Court, HELD 1.1 Proceedings under section 125 of the Code of Criminal Procedure are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.
In the instant case, the order of the High Court of Calcutta quashing the order of maintenance in favour of the child by setting aside the concurrent findings rendered by the Courts below is not in order.
[1094E F] 1.2 The proper course for the High Court, even if enti tled to interfere with the concurrent findings of the courts below in exercise of its powers under Section 482 Cr.
P.C., should have been to sustain the order of maintenance and direct the respondent to seek an appropriate declaration in the Civil Court, after a full fledged trial, that the child was not born to him and as such he is not legally liable to maintainit.
[1094D E] 1 .3
The facts of the case and the conduct of the par ties and the attendant circumstances reveal a preponderance of materials to support the case of the appellant rather than that of the respondent.
[1093E] 1088 If the appellant was pregnant even at the time of the marriage she could not have concealed that fact for long and in any event the respondent would have come to know of it within two or three months of the marriage and thereupon he would have immediately protested and either discarded the appellant or reported the matter to the village elders and relatives and sought for a divorce.
On the contrary the respondent had Continued tO lead life with the appellant in a normal manner till the birth of the child.
Even the con finement appears to have taken place in his house as other wise the child 's birth would not have been registered in his village.
The respondent had not disowned the child immedi ately after its birth or sent away the appellant to her parents ' house.
Such would not have been his conduct if he had any doubt about the paternity of the child.
Moreover, there is an entry in the birth register (Exhibit Kha I) setting out the respondent as the father of the child.
Though the respondent has attempted to neutralise the entry in Exhibit Kha I by examining D.W.2 and making it appear that the entry had been made on the basis of the information given by a third party, the lower courts have refused to give credence to the vague and uncorrobarated testimony of D.W.2.
Further, the respondent had allowed eleven months to pass before effecting a divorce.
By his inaction for such a long period the respondent has given room for inference that the divorce may have been effected for other reasons and not on account of the appellant giving birth to a child con ceived through someone else.
Lastly, even if the child had been born alter a full term pregnancy it has to be borne in mind that the possibility of the respondent having had access to the appellant before marriage cannot be ruled out because they were closely related and would therefore have been moving on close terms.
AH these factors negate the plea of the respondent that the minor child was not lathered by him.
Giving birth to a viable child after 28 weeks ' duration of pregnancy, according to medical science is not biologi cally an improbable or impossible event.
[1093F H; 1094A D] 2.
Section 112 of the Indian Evidence Act lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hun dred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitima tion of the 1089 child would result in rank injustice to the father.
Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.
[1092D F] Mahbub Ali vs Taj Khan, AIR 1915 Lahore 77(2); Kahan Singh vs Natha Singh, AIR 1925 Lahore 414; Sibt Mohamed vs Md. Maneed, AIR 1926 Allahabad 589 and Ponnamal vs Addi Aivan, AIR 1953 TRACO 434 (Vol. 40, C.N. 169), approved.