Gujarat High Court
Hariben Meghajibhai Jasoliya & 3 vs State Of Gujarat Through Secretary & 3 on 26 February, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/1653/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1653 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1654 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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HARIBEN MEGHAJIBHAI JASOLIYA & 3....Petitioner(s)
Versus
STATE OF GUJARAT THROUGH SECRETARY & 3....Respondent(s)
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Appearance:
MR DILIP L KANOJIYA, ADVOCATE for the Petitioner(s) No. 1 - 4
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR HARDIK C RAWAL, ADVOCATE for the Respondent(s) No. 4
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 26/02/2015
ORAL JUDGMENT
1. Both these petitions raise identical question of Page 1 of 30 C/SCA/1653/2014 JUDGMENT law and facts, hence, both petitions were heard together and are hereby disposed of by this common judgment and order.
2. It may be noted that initially notice came to be issued by this Court and as pleadings were completed, at the request of learned counsel for the respective parties, this Court has issued Notice for final disposal in both the petitions.
3. Heard Mr.S.H.Sanjanwala, learned Senior Counsel with Mr.D.L.Kanojiya, learned counsel for the petitioners in both the petitions, Mr.Manan Mehta, learned Assistant Government Pleader for respondent Nos.1 and 2 in both the petitions, Mr.H.S.Munshaw, learned counsel for respondent No.3 in both the petitions and and Mr.H.C.Raval, learned counsel for respondent No.4 in SCA No.1653 of 2014.
4. Rule. Learned counsel appearing for the respective respondents waive Rule. With consent of learned counsel for the parties, the matters are heard for final hearing.
5. The facts of Special Civil Application No.1653 of 2014 are as under: 5.1 That the petitioners are owners of the lands bearing Revenue Survey No.75 paiki 3, paiki 2, Revenue Survey No.75 Paiki 3 paiki 1, Revenue Survey No.75 paiki 2 paiki 1 and Revenue Survey No.75 Paiki 1, admeasuring 4H61A87sq. Mtrs., situated at village Page 2 of 30 C/SCA/1653/2014 JUDGMENT Sidsar, Taluka and District Bhavnagar. The lands in question fall within the area of "Bhavnagar Area Development Authority" ("BADA" for short). BADA published a first revised draft development plan under Section 13(1) of the Gujarat Town Planning and Urban Development Act, 1976 ("the Act' for short) vide Notification dated 27.10.1995. The lands in question came to be reserved for the purpose of S.T.Terminus by the Gujarat State Road Transport Corporation ("GSRTC" for short).
5.2 On 21.05.2001, the State Government in exercise of powers under Section 17(1)(c) of the Act, sanctioned revised draft development plan and it came into force from 25.06.2001. As the lands in question so reserved for S.T.Terminus were not acquired as provided under Section 20 of the Act even after lapse of 10 years, the petitioners issued a notice as contemplated under Section 20(2) of the Act, which was received by GSRTC as well as BADA.
5.3 After receiving the said notice, BADA addressed a letter dated 14.07.2011 to GSRTC asking said authority to specify whether it intends to acquire the lands of the petitioners or not, and GSRTC by communication dated 26.09.2011, clarified that it intends to acquire only Survey No.61 part for the purpose of S.T.Terminus.
5.4 It is the case of the petitioners that, even in the second revised development plan published by the State Government vide Notification dated 17.12.2013, Page 3 of 30 C/SCA/1653/2014 JUDGMENT the lands in question are continued as reserved for the purpose of S.T.Terminus by GSRTC. On the contrary to that, by communication dated 30.04.2013, the Resident Additional Collector informed the petitioners that they do not intend to acquire the lands in question. Thereafter, the petitioners applied for sanction of their plans, however, BADA declined permission on the ground that the lands are reserved for S.T.Terminus. The petitioners also applied for nonagricultural use vide application dated 22.04.2013. The same is also not entertained by Collector, Bhavnagar on the same ground and hence, present petition is filed, wherein the petitioners have prayed for the following main relief(s): "(a) YOUR LORDSHIPS may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction quashing and setting aside the reservation shown in the final development plan of Bhavnagar Area Development Authority for S.T.Terminus by Gujarat State Road Transport Corporation on the land of the petitioner bearing Revenue Survey No.75 paiki 3/paiki 2, Revenue Survey No.75 paiki 3/paiki 1, Revenue Survey No.75 paiki 3/paiki 2 and Revenue Survey No.75 paiki 1, situated at village Sidsar, Taluka and District Bhavnagar and YOUR LORDSHIPS may be pleased to declare that the land of the petitioner is not acquired by Gujarat State Road Transport Corporation or any other department of the State Government;
(b) YOUR LORDSHIPS may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction quashing and setting aside the Zoning Certificate issued by Bhavnagar Area Development Authority and 2nd Revised Development Plan dated 17.12.2013 showing the reservation for Gujarat State Road Transport Corporation under Section 17 of the Town Planning Act showing the land of the petitioner as being reserved for the S.T.terminus for Gujarat State Road Trnasport Corporation and be pleased to declare that the lands in question is not acquired by any authority of the State Government and treat the lands in question as dereserved and treat the said lands as for residential purpose;
Page 4 of 30 C/SCA/1653/2014 JUDGMENT
(c) YOUR LORDSHIPS may be pleased to declare that
the reservation of the land of the petitioner for S.T.Terminus for Gujarat State Road Transport Corporation has lapsed and writ of mandamus and/or any other appropriate writ, order or direction be issued directing the respondents to act according to law and treat the land of the petitioner as dereserved.
(d) Deleted;
(e) YOUR LORDSHIPS may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction quashing and setting aside the order dated 10.05.2013 passed by the Chief Executive Officer of Bhavnagar Area Development Authority requesting to grant permission for residential use as prayed by the petitioner and writ of mandamus and/or any other appropriate writ, order or direction be issued to Bhavnagar Area Development Authority to sanction the said plan.
(f)***
(g)***"
6. Learned counsel for the petitioners has contended that reservation in favour of GSRTC has lapsed as provided under Section 20(2) of the Act, as after expiry of 10 years on a notice having been issued as contemplated under Section 20(2) of the Act, GSRTC has not acquired the lands within a period of six months. It is also contended that it is quite clear from communication dated 26.09.2011 addressed by GSRTC that, it does not want to acquire the lands of the petitioners. It is also contended that hence, action of the respondent authorities in not allowing non agricultural use even though reservation has lapsed, is violative of Articles 14 and 300A of the Constitution of India. It is also contended that, now it is well settled that, if the lands are not acquired within a stipulated period mentioned under Section Page 5 of 30 C/SCA/1653/2014 JUDGMENT 20(2) of the Act, reservation would lapse and it is not open to rereserve the lands under Section 21 of the Act. It is also contended that reservation as such has continued for almost 17 years and it cannot be eternal reservation as the same would be bad as held by the Apex Court. It is also contended that, resultantly, decision taken by BADA as well the Collector in not permitting development and not grant of N.A.Permission, is illegal. Even while sanctioning second revised development plan, the State Government has ignored the objections filed by the petitioners and therefore, the petition deserves to be allowed as prayed for.
7. The petitioners have also filed an Additional Affidavit dated 04.11.2014, whereby the petitioners have brought on record a Resolution dated 21.06.2014 issued by BADA to buttress the arguments that GSRTC does not intend to acquire the lands of the petitioners and also the fact that GSRTC has no financial means to acquire the said lands. The petitioners have further filed an Affidavit dated 07.02.2015, inter alia, contending that even in the Zoning Certificate given by BADA, reservation of S.T.Terminus in favour of GSRTC is wrongly shown as per second revised development plan dated 17.12.2013 and has contended that it is not open for the authorities and the State Government to rereserve the lands under Section 21 of the Act in the second revised development plan.Page 6 of 30
C/SCA/1653/2014 JUDGMENT
8. BADA has filed an Affidavit dated 14.07.2014 and has contended as under:
"In view of the above facts it is crystal clear that the land in question is required by Gujarat State Road Transport Corporation i.e. respondent No.1 and accordingly, reserved on its request for construction of S.T.Bus Terminal. It is submitted that the objections dated 16.08.2011 submitted by the petitioner with regard to observations of land in question for S.T.Bus Terminal during the preparation of second revised draft development plan were forwarded to the respondent No.1 for its consideration along with other objections subsequent to resolution passed by the Board of Members of Bhavnagar Area Development Authority in its meeting dated 11.06.2012. It is submitted that the reservation of the land in question for S.T.Bus Terminal proposed by the respondent No.4 stands as on today as second revised development plan is sacntioned by the respondent No.1 on 17.12.2013 after taking into consideration of objections and hence, present Special Civil Application moved by the petitioner to dereserve property is not maintainable. It is submitted that even the contentions raised by the petitioner that various Gujarat State Road Transport Corporation is not in requirement of the land in question for its Bus terminal as per its letter dated 26.09.2011 are also not tenable. The respondent No.3 craves leave to annex herewith a copy of said letter is marked as AnnexureA. It is submitted that the impugned letter addressed to the respondent No.2 is very specific about its requirement of the landing question and as such the petitioner is misleading and misinterpreting the same to suit for her purpose. The respondent No.3 further submits that the provisions of Section20 of the Act are with regard to acquisition of land designated in the final development plan. It is most respectfully stated that such land is required to be acquired either by agreement or under the provisions of Land Acquisition Act, 1894 as land down under Section20(1), Gujarat Town Planning and Urban Development Act, 1976. it is most respectfully stated that Section20(2) of the Act is vital important. It is submitted that the said provisions laid down that the owner or any person interested in the land has to serve a notice on the authority concerned requiring it to acquire the land within 6 months from the date of service of such notice, the land is not required and no steps are commenced for acquisition designating all the land as aforesaid shall be deemed to have been lapsed. It is pertinent to note that such notice can be issued only after the land is not Page 7 of 30 C/SCA/1653/2014 JUDGMENT acquired within a period of 10 years from the date of coming into force of the final development plan. The respondent No.3 craves leave to state that in the instant case, second revised development plan has come into force on 17.12.2013 and therefore, it is clear that a period of 10 years has not completed. It is further stated that the provisions categorically make it clear that the owner or any person interested in the land has to serve a notice on the authority concerned requiring it to acquire land. It is humbly stated that in the present case it is crystal clear that the petitioner has not served any notice under Section20(2) of the Act on Gujarat State Road Transport Corporation. In view of this it is clear that the respondent No.4 i.e. Gujarat State Road Transport Corporation is in requirement of the land and at no stage it has come up with its reservation. It is further stated that a period of 10 years and development plan has come into force on 17.12.2013 has not explained and therefore, the petitioner cannot insist and seek direction against the reservation and pray for dereservation of the land."
9. It may further be noted that BADA has also filed an Additional Affidavit dated 19.01.2015, wherein it has, inter alia, contended that in light of the fact that as GSRTC does not intend to acquire the lands of the petitioners, BADA has taken a decision to vary the final development plan and a proposal is already sent to the State Government for its appropriate decision and has therefore, contended that both the petitions have become infructuous and has prayed that the petitions be dismissed.
10. It may further be noted that GSRTC has not filed an affidavit.
11. The facts of Special Civil Application No.1654 of 2014 are as under: 11.1 The petitioner is owner of the land bearing Revenue Survey No.149, admeasuring 11,331 Sq.Mtrs., of Page 8 of 30 C/SCA/1653/2014 JUDGMENT Village Adhevada, Taluka and District Bhavnagar. The land in question was reserved for the purpose of site and service project of BADA in the first draft development plan, published by BADA under Section 13(1) of the Act, which was published on 27.10.1995. The State Government sanctioned first draft development plan vide Notification dated 21.05.2001, which came into force from 25.06.2001, wherein the land in question was shown reserved for site and service project of BADA.
11.2 It is the case of the petitioner that as the land in question is not acquired for a period of 11 years and 1 month, the petitioner addressed a notice as provided under Section 20(2) of the Act on 30.07.2012 asking BADA to acquire the land, if so needed, and pointed out that, if it is not acquired, reservation would lapse as provided under Section 20(2) of the Act. It is further case of the petitioner that the land in question was not acquired, on the contrary, BADA passed a Resolution in its meeting dated 20.08.2012, whereby it was decided not to acquire the land as the same is not required. In addition to that, BADA has also expressly decided that it does not have financial means to finalize the said project and even, the staff is not available for the same. Even though, such Resolution was passed, same reservation came to be continued in the second revised development plan, which came to be sanctioned by the State Government vide Notification dated 17.12.2013 and because of such continuation of reservation, land in question still Page 9 of 30 C/SCA/1653/2014 JUDGMENT remains reserved for site and service project of BADA.
12. The petitioner has also relied upon further Resolution dated 14.02.2013 passed by BADA, whereby BADA has expressed that it is not in a position to acquire the land. Even by communication dated 30.04.2013, Resident Deputy Collector on an application filed by the petitioner under the provisions of the Right to Information Act informed that the land is not acquired. The petitioner applied for development permission with BADA and for N.A. permission with the Collector, however, the same has been declined on the ground that the land is reserved for the purpose of site and service project of BADA.
13. The petitioner has raised identical grounds as raised by learned counsel for the petitioners in Special Civil Application No.1653 of 2014 and therefore, the same are not repeated herein. The petitioner has also filed an Additional Affidavit to bring on record of this petition that BADA has passed a further Resolutions dated 14.02.2013 and 26.06.2014, wherein BADA has reiterated that it does not want the lands in question and has neither means or finance to acquire the land for the said purpose. The petitioner has also filed a further Affidavit dated 07.02.2015 and has contended that as per settled law, reservation of the land in question cannot be rereserved under Section 21 of the Act.
14. BADA has filed an affidavit dated 19.01.2015, Page 10 of 30 C/SCA/1653/2014 JUDGMENT wherein in para6, it has averred thus: "6. That respondent No.6 submits that at this stage respondent No.3 is not entering in to various legal issues raised by the petitioner in the memo of petition as pending the present petition, there is a further development. The respondent No.3 submits that Bhavnagar Area Development Authority has resolved to dereserve the land in question originally reserved for its site and service purpose. It is further submitted that the land in question i.e. Revenue Survey No.14 paiki of village Adhevada is resolved to be kept in residential zone under the provisions of section 12 of the Gujarat Town Planning and Urban Development Act, 1976. It is further further stated that a proposal is also sent to the respondent No.1 along with a resolution of the authority as well as a detailed report/opinion on 3.7.2014 for appropriate action and decision as provided under the provisions of Section 19 of the Gujarat Town Planning and Urban Development Act, 1976 and a copy of the said proposal is annexed as AnnexureA. It is submitted that the matter is pending for appropriate decision before the respondent No.1."
15. Mr.Sanjanwala, learned Senior Counsel with Mr.D.L.Kanojiya, learned counsel for the petitioners in both the petitions has reiterated the grounds, which are raised in both the petitions. Mr.Sanjanwala, relying upon the judgments of the Apex Court rendered in the cases of Bhikhubhai Vithhalbhai Patel and Ors. Vs. State of Gujarat & Ors. (2008 (4) SCC 144), Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors. (2003(2) SCC 111) and Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke and Chemicals Ltd. & Ors. (2007(8)SCC 705) as well as the judgment of the Division Bench of this Court rendered in the case of Palitana Sugar Mill (P) Ltd. Vs. State of Gujarat (2001(2)GLH 294), contended that as the authorities for whom the lands in both the matters are reserved, have failed to acquire the lands, even after Page 11 of 30 C/SCA/1653/2014 JUDGMENT six months of issuance of the notice as contemplated under Section 20(2) of the Act were given by the petitioners. The reservation for the authorities for which the lands in both the petitions are rereserved, stand lapse. Mr.Sanjanwala, further contended that action of the authorities including the State Government in rereserving the lands under Section 21 of the Act is dehors the provisions of the Act and against the principles decided in binding decisions of the Apex Court. It was further contended that since the publication of first draft development plan under Section 13(1) of the Act in the year 1995, the development is freezed. It was further contended that even though the authorities for which the lands are so reserved, have expressed its inability to acquire the lands and have expressed in clear terms that it does not wish to acquire, rereserving the lands in question in the second revised development plan, is violative of Articles 21 and 300A of the Constitution of India and the same amounts to depriving a citizen to develop the land in question. It was also contended that the issue involved in these petitions is settled by binding decision of the Apex Court. Mr.Sanjanwala, further contended that as the reservation has lapsed and as action of rereserving the lands in second revised development plan is bad and illegal and further as the reservation in both the petitions has lapsed automatically as per the decision rendered in the case of Bhavnagar university (supra), now there is no question for variation in the second revised development plan as sought to be canvassed by BADA in Page 12 of 30 C/SCA/1653/2014 JUDGMENT both the matters. Mr.Sanjanwala, therefore, submitted that both the petitions deserve to be allowed, as prayed for.
16. Per contra, Mr.Manan Mehta, learned Assistant Government Pleader for respondent Nos.1 and 2, Mr.H.S.Munshaw, learned counsel for BADA in both the matters and Mr.H.C.Raval, learned counsel for GSRTC in SCA No.1653 of 2014 have relied upon the affidavit filed by BADA. Mr.Munshaw, relying upon the second affidavit in both the matters, contended that the petitions become infructuous in view of the fact that BADA itself has decided to vary the development plan and to remove reservation in both the cases. It was also contended that the petitions may be treated as having become infructuous and the same deserve to be dismissed.
No other and further submissions are made by learned counsel for the respective parties.
17. Before reverting to the contentions raised by respective counsel, it would be appropriate to quote the following provisions of the Gujarat Town Planning and Urban Development Act, 1976: "13:Publication of draft development plan : (1) The area development authority or, as the case may be, the authorised officer shall, as soon as may be, after a draft development plan is prepared and submitted to the State Government under section 9, publish it in the Official Gazette and in such other manner as may be prescribed alongwith a notice in the prescribed manner, inviting suggestions or objections from any person with respect to the development plan within a period of two months from the date of its publication.
(2) The following particulars shall be published Page 13 of 30 C/SCA/1653/2014 JUDGMENT alongwith thedraft development plan, namely :
(a) a statement indicating broadly the uses to which lands in the area covered by the plan are proposed to be put and any survey carried out for the preparation of the draft development plan;
(b) maps, charts and statements explaining the provisions of the draft development plan;
(c) the draft regulations for enforcing the provisions of the draft development plan;
(d) procedure explaining the manner in which permission for developing any land may be obtained from the area development authority or, as the case may be, the authorised officer;
(e) a statement of the stage of development by which it is proposed to meet any obligation imposed on the area development authority by the draft development plan;
(f) an approximate estimate of the cost involved in acquisition of land reserved for public purposes.
15:Modifications made after publication of draft development plan :
When the modifications made by an area development authority or, as the case may be, by the authorised officer in the draft development plan are of an extensive or of a substantial nature, the said authority or, as the case may be, the authorised officer shall publish the modifications in the Official Gazette alongwith a notice in the prescribed manner inviting suggestions or objections from any person with respect to the proposed modifications within a period of two months from the date of publication of such notice and thereupon, the provisions of section 14 shall apply in relation to such suggestions or objections.
17:Power of State Government to sanction draft development plan : (1) (a) On receipt of the draft development plan under section 16, the State Government may, by notification,
(i) sanction the draft development plan and the regulation so received, within the prescribed period , for the whole of the area covered by the plan or separately for any part thereof, either without modification, or subject to such modification, as it may consider proper; or
(ii) return the draft development plan and the regulations to the area development authority or, as the case may be, to the authorised officer, for modifying the plan and the regulations in such manner as it may direct : Provided that, where the State Government is of opinion that substantial modifications in the draft development plan and Page 14 of 30 C/SCA/1653/2014 JUDGMENT regulations are necessary, the State Government may, instead of returning them to the area development authority or, as the case may be, the authorised officer under this subclause, publish the modifications so considered necessary in the Official Gazette alongwith a notice in the prescribed manner inviting suggestions or objections from any person with respect to the proposed modifications within a period of two month from the date of publication of such notice; or
(iii) refuse to accord sanction to the draft development plan and the regulations and direct the area development authority or the authorised officer to prepare a fresh development plan under the provisions of this Act.
(b) Where a development plan and regulations are returned to an area development authority, or, as the case may be, the authorised officer under subclause
(ii) of clause (a), the area development authority, or, as the case may be, the authorised officer, shall carry out the modifications therein as directed by the State Government and then submit them as so modified to the State Government for sanction; and the State Government shall thereupon sanction them after satisfying itself that the modification suggested have been duly carried out therein.
(c) Where the State Government has published the modification considered necessary in a draft development plan as required under the proviso to sub clause (ii) of clause (a), the State Government shall, before according sanction to the draft development plan and the regulations, take into consideration the suggestions or objections that may have been received thereto, and thereafter accord sanction to the drafts development plan and the regulations in such modified form as it may consider fit. (d) The sanction accorded under 1[clause (a), clause (b)] or clause (c) shall be notified by the State Government in the Official Gazette and the draft development plan together with the regulations so sanctioned shall be called the final development plan. (e) The final development plan shall come into force on such date as the State Government may specify in the notification issued under clause (d) :
Provided that the date so specified shall not be earlier than one month from the date of publication of such notification. (2) Where the draft development plan submitted by an area development authority or, as the case may be, the authorised officer contains any proposals for the reservation of any land for a purpose specified in clause (b) or 1[clause (n) or clause (o)] of subsection (2) of section 12 and such land does not vest in the area Page 15 of 30 C/SCA/1653/2014 JUDGMENT development authority, the State Government shall not include the said reservation in the development plan, unless it is satisfied that such authority would acquire the land, whether by agreement or compulsory acquisition, within ten years from the date on which the final development plan comes into force. (3) A final development plan which has come into force shall, subject to the provisions of this act, be binding on the area development authority concerned and on all other authorities situated in the area of the development plan. (4) After the final development plan comes into force, the area development authority concerned may execute any work for developing, re developing or improving any area within the area covered by the plan in accordance with the proposals contained in the development plan.
19:Variation of final development plan : (1) If on a proposal from an area development authority in that behalf or otherwise, the State Government is of opinion that it is necessary in the public interest to make any variation in the final development plan (hereinafter referred to as variation), it shall publish in the Official Gazette,
(a) the variation proposed in the final development plan, (b) the amendment, if any, in the regulations, and (c) the approximate cost, if any, involved in the acquisition of land, which by virtue of the variation would be reserved for a public purpose, alongwith a notice, inviting a suggestions or objections from any person with respect to the variation within a period of two month from the date of publication of the variation.
(2) After considering the suggestions or objections, if any, received under subsection (1) within the period specified therein and after consulting the area development authority in a case where the variation is not proposed by that authority, the State Government may, by notification, sanction the variation with or without modifications, as it may consider fit to do and such variation shall come into force on such date as may be specified in the notification. (3) From the date of coming into force of the variation, the provisions of this Act shall apply to such variation, as they apply to a final development plan.
(4) If any person who is affected by such variation has incurred any expenditure in complying with the final development plan as it existed before such variation, such person shall be entitled to received compensation,
(i) where the variation is made on the proposal of an area development authority, from that authority, and
(ii) in any other case, from the State Government, if Page 16 of 30 C/SCA/1653/2014 JUDGMENT such expenditure is rendered abortive by reason of the variation of the plan.
21:Revision of development plan : Atleast once in ten years from the date on which a final development plan comes into force, the area development authority shall revise the development plan after carrying out, if necessary, a fresh survey and the provisions of sections 9 to 20, shall, so far as may be, apply to such revision.
18. From the factual matrix as noted above, BADA being an appropriate authority published a first revised draft development plan vide its Notification dated 27.10.1995, since then in both the cases, the lands in question were reserved for the purpose of S.T. Terminus for GSRTC in Special Civil Application No.1653 of 2014 and for BADA for the purpose of site and service project in Special Civil Application No.1654 of 2014. It is also an admitted position that the first revised draft development plan of BADA came to be sanctioned under the relevant provisions of the Act and it has come into force since 25.06.2001. On expiry of 10 years and more, the petitioners in both the petitions issued a notice as provided under Section 20(2) of the Act and GSRTC as well as BADA for whom the lands were reserved in these petitions, have admittedly not acquired the lands within prescribed period of 6 months. Record further indicates that even though, no acquisition took place after the petitioners issued notice under Section 20(2) on 30.07.2012 in Special Civil Application No.1653 of 2014 and on 07.08.2012 in Special Civil Application No.1654 of 2014 and even though, the lands were not acquired, the same came to be rereserved in the Page 17 of 30 C/SCA/1653/2014 JUDGMENT second revised development plan, which came to be sanctioned by the State Government vide Notification dated 17.12.2013. It is an admitted position that GSRTC has not acquired the lands in Special Civil Application No.1653 of 2014 and on the contrary, has expressed in no uncertain terms that it does not require the lands of the petitioners and has neither any means to acquire the same. Similarly, in case of Special Civil Application No.1654 of 2014, BADA has also time and again reiterated its stand that it does not have appropriate infrastructure to develop a site and service project as per reservation in the development plan and has therefore, taken conscious decision not to acquire the lands of the petitioners.
19. In an identical case arising from same Area Development Authority, the Division Bench of this Court in the case of Palitana Sugar Mill (P) Ltd. (supra) (2001 (2) GLH 294), has clearly held that reservation in development plan cannot be for more than 10 years and if, it is not acquired after receipt of the notice as provided under Section 20(2) of the Act within time stipulated in the said provision, reservation stands lapsed. The said judgment came to be challenged by the Authority as well as the State Government before the Apex Court and in the case of Bhavnagar University (supra), the Apex Court has observed thus:
29. By reason of the provision of the said Act, a reasonable restriction, has been imposed upon the owner on the user of his property. In terms of Section 12 of the said Act, town planning is contemplated through preparation of draft development Page 18 of 30 C/SCA/1653/2014 JUDGMENT plan which contains not only proposals for designating certain area for residential, industrial, commercial, agricultural or recreational purposes but also for the purposes for maintaining environment and ecological balance by setting up zoological gardens, green belts, natural reserves and sanctuaries. In terms of such development plan reservation of certain land for public use is also provided. From the relevant provisions of the said Act, as noticed hereinbefore, it is absolutely clear that in terms thereof the State Government is made the ultimate authority to publish a development plan, inter alia, providing for designation or reservation of the land. The State Government while arriving at its conclusion as regards public interest involved in the matter is required to arrive at its satisfaction on objective basis as provided in terms of subsection (2) of Section 17 to the effect that the lands in respect whereof reservation is proposed to be made can be acquired for the fulfillment of the object therefor either by agreement or compulsory acquisition within the period specified therein. It has not been disputed before us nor is it necessary to consider in the facts and circumstances of this case as to whether establishment of the educational institutions or universities would be covered by the provisions of subsection (2) of Section 12 thereof?
30. Sections 20 and 21 of the said Act are required to be read conjunctively with Sections 12 and 17. We may notice that clause (k) of subsection (2) of Section 12 does not find mention in subsection (2) of Section 17 as regards proposed reservation for the State and other statutory authorities but clauses (n) and (b) of subsection (2) of Section 12 are specifically mentioned in Section 20. In Section 20, provisions of clauses (b), (d), (f), (k) and (o) of subsection (2) of Section 12 have specifically been mentioned. The High Court has proceeded on the basis that the words 'designation' or 'reservation' are interchangeable for the purpose of the Act. The said finding of the High Court is not in question.
31. Whereas in terms of Sections 12 and 17 of the said Act, the reservation and designation have been provided, subsection (1) of Section 20 thereof only enables the authorities to acquire the land designated or reserved for the purpose specifically mentioned in clauses (b) and (n) of subsection (2) of Section 12 as also other clauses specified therefor either by acquisition or agreement or in terms of the provisions of the Land Acquisition Act. Subsection (1) of Section 20 is merely an enabling Page 19 of 30 C/SCA/1653/2014 JUDGMENT provision.
32. Subsection (2) of Section 20, however, carves out an exception to the exercise of powers by the State as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under subsection (1) of Section 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further in the event an owner or a person interested in the land serves a notice in the manner specified therein, certain consequences ensue, namely, the designation of the land shall be deemed to have lapsed. A legal fiction, therefore, has been created in the said provision.
33. The purpose and object of creating a legal fiction in the statute is wellknown. When a legal fiction is created, it must be given its full effect. In East End Dwelling Co. Ltd. v. Finsbury Borough Council, [(1951) 2 All.E.R 587], Lord Asquith, J. stated the law in the following terms: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
The said principle has been reiterated by this Court in M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. & Anr. [(1994) 2 SCC 323]. See also Indian Oil Corporation Limited v. Chief Inspector of Factories & Ors.etc., [(1998) 5 SCC 738], Voltas Limited, Bombay v. Union of India & Ors.,[(1995) Supp. 2 SCC 498], Harish Tandon v.
Addl. District Magistrate, Allahabad, U.P. & Ors. [(1995) 1 SCC 537] and G. Viswanathan etc. v. Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras & Anr. [(1996) 2 SCC 353].
34. The relevant provisions of the Act are absolutely Page 20 of 30 C/SCA/1653/2014 JUDGMENT clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse.
35. This Court in Municipal Corporation of Greater Bombay's case (supra), in no uncertain terms while construing the provisions of Section 127 of the Maharashtra Regional and Town Planning Act, 1966 held the period of ten years as reasonable in the following words: "8. While the contention of learned counsel appearing for the appellant that the words 'six months from the date of service of such notice' in Section 127 of the Act were not susceptible of a literal construction, must be accepted, it must be borne in mind that the period of six months provided by Section 127 upon the expiry of which the reservation of the land under a Development Plan lapses, is a valuable safeguard to the citizen against arbitrary and irrational executive action. Section 127 of the Act is a fetter upon the power of eminent domain. By enacting Section 127 the legislature has struck a balance between the competing claims of the interests of the general public as regards the rights of an individual."
It was observed that :
"The Act lays down the principles of fixation by providing first, by the proviso to Section 126(2) that no such declaration under subsection (2) shall be made after the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan, secondly, by enacting subsection (4) of Section 126 that if a declaration is not made within the period referred to in subsection (2), the State Government may make a fresh declaration but, in that event, the market value of the land shall be the market value at the date of the declaration under Section 6 and not the Page 21 of 30 C/SCA/1653/2014 JUDGMENT market value at the date of the notification under Section 4, and thirdly, by Section 127 that if any land reserved, allotted or designated for any purpose in any development plan is not acquired by agreement within 10 years from the date on which a final regional plan or development plan comes into force or if proceedings for the acquisition of such land under the Land Acquisition Act are not commenced within such period, such land shall be deemed to be released from such reservation, allotment or designation and become available to the owner for the purpose of development on the failure of the Appropriate Authority to initiate any steps for its acquisition within a period of six months from the date of service of a notice by the owner or any person interested in the land. It cannot be doubted that a period of 10 years is long enough., The Development or the Planning Authority must take recourse to acquisition with some amount of promptitude in order that the compensation paid to the expropriated owner bears a just relation to the real value of the land as otherwise, the compensation paid for the acquisition would be wholly illusory. Such fetter on statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed."
It is true that Section 21 of the Act imposes a statutory obligation on the part of the State and the appropriate authorities to revise the development plan and for the said purpose Sections 9 to 20 'so far as may be' would be applicable thereto, but thereby the rights of the owners in terms of sub section (2) of Section 20 are not taken away.
36. The question, however, is as to whether only because the provision of Section 20 has been referred to therein; would it mean that thereby the Legislature contemplated that the time of ten years specified by the Legislature for the purpose of acquisition of the land would get automatically extended? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given its full effect, we must also give full effect to the words "so far as may be" applied to such revision.
37. The said words indicate the intention of the Legislature to the effect that by providing revision of final development plan from time to time and at least once in ten years, only the procedure or preparation thereof as provided therein, is required to be followed. Such procedural requirements must be Page 22 of 30 C/SCA/1653/2014 JUDGMENT followed so far as it is reasonably possible. Section 21 of the Act, in our opinion, does not and cannot mean that the substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the Legislature that what is given by one hand should be taken away by the other.
38. Section 21 does not envisage that despite the fact that in terms of subsection (2) of Section 20, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a landowner under Section 22 of getting the land defreezed. In the event the submission of the learned Solicitor General is accepted the same would completely render the provisions of Section 20(2) otiose and redundant.
39. Subsection (1) of Section 20, as noticed hereinbefore, provides for an enabling provision in terms whereof the State become entitled to acquire the land either by agreement or taking recourse to the provisions of the Land Acquisition Act. If by reason of a revised plan, any other area is sought to be brought within the purview of the development plan, evidently in relation thereto the State will be entitled to exercise its jurisdiction under sub section (1) of Section 20 but it will bear repetition to state that the same would not confer any other or further power upon the State to get the duration of designation of land, which has been lapsed, extended. What is contemplated under Section 21 is to meet the changed situation and contingencies which might not have been contemplated while preparing the first final development plan. The power of the State enumerated under subsection (1) of Section 20 does not become ipso facto applicable in the event of issuance of a revised plan as the said provision has been specifically mentioned therein so that the State may use the same power in a changed situation."
20. Similarly, the Apex Court in the case of Bhikhubhai Vithhalbhai Patel and Ors. (supra) as well as Chairman, Indore Vikas Pradhikaran (supra) has taken a similar view.
21. Recently, the Apex Court while considering a similar case under Section 127 of the MRTP Act, which Page 23 of 30 C/SCA/1653/2014 JUDGMENT is almost pari materia to Section 20 of the Act, being Civil Appeal No.1086 of 2015 in the case of Godrej & Boyce Manufacturing Co. Ltd. Vs. State of Maharashtra & Ors., has observed thus: "15. Having heard the learned senior counsel on behalf of both the parties and with reference to the abovesaid rival factual and legal contentions, we have carefully examined the same keeping in view the undisputed facts involved in this case. It is an undisputed fact that the respondent No. 1 has reserved the land in question for the Development Plan under the provisions of Section 127 of the MRTP Act for the acquisition of the land in favour of Ministry of Railways for laying additional railway track between "Thane and Kurla". It would be apposite to extract Section 127 of the MRTP Act for better appreciation of the claim of the parties, which deals with lapsing of reservation: "127. Lapsing of reservationsIf any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan."
16. It is also an undisputed fact that after 10 years, notice dated 4.9.2002 served by the appellant under Section 127 of the MRTP Act upon the respondent No.1 stating that if, the reserved land was needed for the notified purpose, Railway department may acquire the same by adopting acquisition proceedings, Page 24 of 30 C/SCA/1653/2014 JUDGMENT but if the same is not acquired, the clarification to that effect be issued. Thereafter, on 3.3.2003 the period of 6 months as prescribed under the provision of Section 127 of the MRTP Act, after issuance of the above notice by the appellant and served on the respondent No.1, was also lapsed long back. Therefore, the reservation of the land in favour of the Railway was deemed to be released under the above said provision of the MRTP Act. The respondent No. 2 Ministry of Railways informed the Urban Development Department of the State Government on 1.11.2004 stating that there was no proposal for acquisition of the land in the Railways in the near future, is evident from the undisputed fact of the correspondence made between the Ministry of Railways and the Urban Development Department of the State Government, which would clearly go to show that the land reserved even after 10 years and on expiry of service of notice of 6 months there was no intention on the part of the State Government to acquire the reserved land for the purpose reserved in favour of the Railways department to form the Railway tracks between "Thane and Kurla". In that view of the matter, the land reserved for the purpose under Section 127 of the MRTP Act, is lapsed and the appellant is entitled for developing the land as it likes. The State Government instead of clarifying to the notice issued by the appellant, has proceeded further to initiate proceedings under Section 37 of the MRTP Act, proposing the modification in the Development Plan by deleting Railway reservation and adding reservation for Development Plan Road. Section 37(1) of the MRTP Act, which deals with modification of Final Development Plan reads thus: "37.Modification of final Development Plan (1) Where a modification of any part of or any proposal made in, a final Development Plan is of such a nature that it will not change the character of such Development Plan, the Planning Authority may, or when so directed by the State Government shall, within sixty days from the date of such direction, publish a notice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Page 25 of 30 C/SCA/1653/2014 JUDGMENT Government for sanction. 1A) If the Planning Authority fails to issue the notice as directed by the State Government, the State Government, shall issue the notice and thereupon, the provisions of subsection (1) shall apply as they apply in relation to a notice to be published by a Planning Authority."
By a careful reading of the provisions of Sections 127 and 37(1) of the MRTP Act, which are extracted as above abundantly make it clear that the State Government is not empowered to delete the reservation of the land involved in this case from Railway use and to modify the same for Development Plan Road in the Development Plan after expiry of 10 years and 6 months notice period was over as the appellant has acquired the valuable statutory right upon the land and the reservation of the same for the proposed formation of Railway track was lapsed long back. Further the respondent No. 2 vide its letter dated 1.11.2004 has stated that there is no proposal for acquisition of land for the purpose of which it was reserved.
Section 127 of the MRTP Act, which fell for consideration before the three Judge Bench of this Court in the case of Shrirampur Municipal Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher & Ors. wherein the contention of the appellant that the majority judgment in the case of Girnar Traders (2) v. State of Maharashtra3 need to be considered by larger Bench as the same is contrary to Section 127 and Municipal Corpn. Of Greater Bombay v. Hakimwadi Tenants' Asson.4 case, was rejected. The Court opined that the same is not contrary to Section 127 of the MRTP Act and further held that there is no conflict between the judgments of the twoJudge Bench in Hakimwadi Tenants' Asson. (supra) and the majority judgment in Girnar Traders (2) (supra) case. Further, the three Judge Bench judgment in Shrirampur Municipal Council, Shrirampur (supra) at paras 45 and 46 supported the observation of Constitution Bench in Girnar Traders (3) v. State of Maharashtra5 case relating to Section 127 of the MRTP Act, which read thus: "45. In our view, the observations contained in para 133 of Girnar Traders (3) unequivocally support the majority judgment in Girnar Traders (2).
46. As a sequel to the above discussion, we hold that the majority judgment in Girnar Traders (2) lays down correct law and does not Page 26 of 30 C/SCA/1653/2014 JUDGMENT require reconsideration by a larger Bench..."
From the above, it is clear that the majority view in Girnar Traders (2) (supra) is held to be good law. Therefore, the case of Girnar Traders (2) (supra) is binding precedent under Article 141 of the Constitution of India upon the respondent No.1. The relevant paragraph 133 from Girnar Traders (3) is extracted hereunder : "133. However, in terms of Section 127 of the MRTP Act, if any land reserved, allotted or designated for any purpose specified is not acquired by agreement within 10 years from the date on which final regional plan or final development plan comes into force or if a declaration under subsection (2) or (4) of Section 126 of the MRTP Act is not published in the Official Gazette within such period, the owner or any person interested in the land may serve notice upon such authority to that effect and if within 12 months from the date of service of such notice, the land is not acquired or no steps, as aforesaid, are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed and the land would become available to the owner for the purposes of development. The defaults, their consequences and even exceptions thereto have been specifically stated in the State Act. For a period of 11 years, the land would remain under reservation or designation, as the case may be, in terms of Section 127 of the MRTP Act (10 years + notice period)."
In view of the above said statement of law declared by this Court in the cases referred to supra, after adverting to the judgment of majority view in Girnar Traders (2) case (supra) is accepted in Shrirampur Municipal Council, Shrirampur (supra), wherein it is held that the Girnar Traders (2)(supra) case is not conflicting with the Hakimwadi Tenants' Asson. Case (supra), the statement of law laid down in the above referred cases are aptly applicable to the fact situation. Therefore, we have to hold that the impugned notification is bad in law and liable to quashed. The High Court has not examined the impugned notification from the view point of Section 127 of the MRTP Act and interpretation of the above said provision made in the case of Girnar Traders (2) (supra), therefore, giving liberty to the appellant by the High Court to file objections to the proposed Page 27 of 30 C/SCA/1653/2014 JUDGMENT notification is futile exercise on the part of the appellant for the reason that the State Government, once the purpose the land was reserved has not been utilized for that purpose and a valid statutory right is acquired by the land owner/interested person after expiry of 10 years from the date of reservation made in the Development Plan and 6 months notice period is also expired, the State Government has not commenced the proceedings to acquire the land by following the procedure as provided under Sections 4 and 6 of the repealed Land Acquisition Act, 1894. Therefore, the land which was reserved for the above purpose is lapsed and it enures to the benefit of the appellant herein. Therefore, it is not open for the State Government to issue the impugned notification proposing to modify the Development Plan from deleting for the purpose of Railways and adding to the Development Plan for the formation of Development Plan Road after lapse of 10 years and expiry of 6 months notice served upon the State Government.
17. In view of above, the order passed by the High Court as well as the impugned notification issued by the State Government are vitiated in law and liable to be set aside and quashed and we order accordingly.
18. The appeal is allowed. The impugned order is set aside and consequently Rule issued. The impugned notification dated 5.8.2008 is also quashed as the period of 10 years from the date of reservation in the Development Plan and 6 months notice served by the appellant on the respondent No. 1 is also over, the reservation of the land is lapsed. No costs."
22. Applying the ratio laid down by the Apex Court in the case of Bhavnagar University (supra) in both the cases, the petitioners have issued notices under Section 20(2) of the Act and in both the cases, the authorities for whom the lands are reserved have failed to acquire the lands in question and therefore, reservation automatically lapses. This Court finds that, even though, the notices were issued, the very action of rereserving the lands under Section 21 of the Act in the second revised development plan, which came to be sanctioned under Section 17 of the Act, is Page 28 of 30 C/SCA/1653/2014 JUDGMENT illegal, erroneous and unconstitutional.
23. In light of the binding decisions of the Apex Court, the lands in question should not have been re reserved in the manner in which, it has been done by the authority as well as the State Government in present petitions. Therefore, stand taken by Mr.Munshaw, learned counsel for BADA that now as the BADA being an appropriate authority has already made a proposal in variation of the development plan in both the cases, decision has become infructuous, deserves to be negatived.
24. In light of the decision of the Apex Court in the case of Bhavnagar University (supra), as reservation has lapsed, action of rereserving the land for the same purpose in the second revised development plan that too after notice under Section 20(2) of the Act itself, is bad and illegal. The lands of citizens cannot be freezed eternally and even though the law is settled, the petitioners cannot be asked to wait for variation under Section 19 of the Act when re reservation itself is bad.
25. As held by the Division Bench of this Court in the case of Palitana Sugar Mill (P) Ltd. (supra), the words "reservation" and "designation" are inter changeable and therefore, considering the facts and circumstances in both the petitions, failure to acquire the lands within stipulated time would render reservation nugatory and it lapses as per the provisions of Section 20(2) of the Act. Action of the Page 29 of 30 C/SCA/1653/2014 JUDGMENT State Government and the authorities to rereserve the lands under Section 21 of the Act while sanctioning second revised development plan is, therefore, held to be illegal and the reservation deserves to be quashed in both the petitions. Reservation for GSRTC in SCA No.1653 of 2014 made in the second revised development plan dated 17.12.2013 is quashed. Similarly reservation made for site and service project for the purpose of BADA in SCA No.1654 of 2014 is declared to be illegal and is hereby quashed. In both the petitions, reservation over the lands in question is declared to have been lapsed. The authority shall designate the respective lands accordingly and issue Zoning Certificate to the petitioners. Prayer, prayed for in paras20(e) of Special Civil Application No.1653 of 2014 is not dealt with. Similarly, prayers, prayed for in paras21(d)and (e) made in Special Civil Application No.1654 of 2014 are not dealt with and in opinion of this Court, it would be open for the petitioners to apply before the respective authorities accordingly.
Both the petitions are thus partly allowed. Rule is made absolute only to the aforesaid extent. No costs.
(R.M.CHHAYA, J.) Suchit Page 30 of 30