Gujarat High Court
Madhuriben Amrutlal Parikh And Ors. vs Municipal Corporation Of City Of ... on 14 February, 1995
Equivalent citations: (1995)1GLR880
JUDGMENT S.D. Dave, J.
1. This petition, arising under Article 226 of the Constitution of India, concerns with the provisions contained under Section 20 of the Gujarat Town Planning & Urban Development Act, 1976 (hereinafter referred to as the 'Act of 1976'). The said provisions may be quoted thus:
20. (1) The area development authority for whose purpose land is designated in the final development plan for any purpose specified in Clause (b), Clause (d), Clause (k) or Clause (n) of Sub-section (2) of Section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.
(2) If the land referred to Sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894 are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired, or no steps are commenced for its acquisition, the designation of the land as aforesaid shall be deemed to have lapsed.
2. The petitioners by filing this petition challenge the action on the part of the Ahmedabad Municipal Corporation (hereinafter referred to as 'AMC') the respondent No. 1 herein in not allowing the development of the land in question on the ground that the same is under reservation, though the reservation has already lapsed and the Government has already withdrawn from the proposed acquisition.
3. The question which arises for the consideration in light of the statutory requirements and the factual data can be formulated thus:
Is it open to the respondent Nos. 1 & 2, namely, AMC and the Town Development Officer, working thereunder to refuse to grant the permission for the development of the land in question, on the ground that, the said land is under reservation for the purpose of "Housing" for Ahmedabad Municipal Corporation, though the acquisition has been withdrawn from by the Government?
4. The undisputed facts are that, the petitioners are the owners of the land bearing Survey No. 122, now included in the Draft Town Planning Scheme No. 29 (Naranpura) and which has now been given the Final Plot No. 286 admeasuring 7513 sq. metres of Memnagar (Naranpura). The said land was notified for acquisition under Section 4 of the Land Acquisition Act, 1894 by die Notification dated March 31, 1976. The necessary notification under Section 6 also came to be issued later on. This land was thus initially reserved for the purpose of AMC's "Housing", under the Draft Development Plans under the Bombay Town Planning Act, 1954, and thereafter under the Gujarat Town Planning And Urban Development Act, 1976, but the Corporation was not interested in continuing the reservation for the acquisition of the land, probably because they had no funds to pay the compensation. Therefore, the Government of Gujarat exercising the powers under Section 48 of the Land Acquisition Act, 1894 has withdrawn from the acquisition of land in question. Thus, in exercise of the powers, there has been a withdrawal from the acquisition way back in year 1986 and that, before doing so, the Government had obtained the consent of the Acquiring Body, namely, the AMC. The resultant effect of this is, that, the reservation under the Development Plan has already lapsed with the denotification of the land in question and the withdrawal from acquisition.
5. It is in the background of these facts that the petitioners urge that, the plans submitted by them for the sanction of the AMC is not being sanctioned and that, the Development Plans which were sanctioned on 13th August 1983 and had come into force on 17th September 1983 has elapsed on 17th September 1993 and that; therefore, the petitioners had given a notice on 27th September, 1993, after the expiry of the said period often years as required under Section 20 of the Act of 1976. But the AMC has not taken any action for obtaining the land by private negotiations and that, as the acquisition proceedings originally commenced within the period of ten years under Sub-section (2) of Section 20 of the Act of 1976, have been abandoned, the Developmenmt Plan has lapsed and therefore, it was not open for the AMC to refuse to allow the development of the land on that count.
6. The reply affidavit filed by the Town Development Officer working under me AMC would go to show that die AMC had passed die necessary Resolution under Section 78 of die Bombay Provincial Municipal Corporation Act, for acquiring die property for die puropose of die housing scheme for Corporation. It is further averred that the State Government vide the letter dated March 30, 1976 had given the sanction to die said proposal under Section 78 of die Bombay Provincial Municipal Corporation Act (BPMC Act). It is also the say in die affidavit-in-reply that, thereafter, the State Government had issued the necessary notification under Sections 4 & 6 of the Land Acquisition Act on 31-3-1976 and 27-3-1979 respectively. It is further averred that, under die orders of this Court in Special Civil Application No. 74 of 1986 die Government was directed to make and publish die award within sixty days from die date of die orders. After die said orders, die State Government had written to the Corporation that, in view of the decision of this Court, in Special Civil Application No. 325 of 1979, it was more desirable that the land should be acquired under the Urban Land (Ceiling & Regulations) Act, 1976. It is also further the say, in the affidavit-in-reply, that the Corporation has written such a letter to the Government dated October 9, 1991. Thus, according to the reply filed by the concerned respondents, acting on the basis of the said letter, the State Government has decided to acquire the land under the Urban Land Ceiling Act.
7. It is the case of the petitioners being presented by the learned Counsels Mr. S.B. Vakil and Mr. S.H. Sanjanwala that, as a matter of fact the Government vide the letter dated 8-5-1986 addressed to the Commissioner of the AMC has stated in unequivocal terms that, the land in question should not be or is not acquired under the Land Acquisition Act but it may be done under the Urban Land Ceiling Act, 1976.
8. The learned Counsel Mr. Prashant Desai appearing on behalf of the respondent Nos. 1 & 2 and the learned Counsel Mr. Munsha appearing on behalf of the respondent No. 3 have urged that, merely because there has been a decision to withdraw from the acquisition under Section 48 of the Land Acquisition Act, it cannot be said that the Development Plans under Section 20 of the Act of 1976 have lapsed. But this contention coming from the learned Counsels cannot be accepted, regard being had to the provisions contained under Section 20 of the Act of 1976 reproduced above. A bare look to these provisions would go to show that the Area Development Authority or any other authority for whose purpose the land is designated in the Final Development Plans, may acquire the land either by an agreement or under the provisions of the Land Acquisition Act, 1894. It is also clear that if the land is not so acquired by the agreement within a period of ten years from the date of coming into force of the Final Development Plans, or if the proceedings under the Land Acquisition Act, 1894 are not commenced within such period, the owner of the land may serve a notice on the authority concerned requiring it to acquire the land, and if within six months from the date of service of notice the land is not acquired or no steps are commenced for its acquisition die designation of the land as aforesaid shall be deemed to have been lapsed.
9. The facts noticed above would go to show that, the land in question was in fact sought to be acquired for the purpose of the Housing Scheme of the AMC under the provisions of the Land Acquisition Act, 1894; but later on it has been agreed and decided to withdraw from the acquisition, acting under Section 48 of the Land Acquisition Act, 1894. Thus, it is clear that the acquisition proceedings which were started earlier came to an end. Thereafter, there are no fresh proceedings instituted under the provisions of the Land Acquisition Act, 1894. Even though acting under Section 20(2) of the Act of 1976, the petitioners had given the necessary notice to do so, no such action have been taken. It is, therefore, clear that the designation of the land shall have to be deemed to have lapsed.
10. The learned Counsels appearing on behalf of the respondents have tried to urge that, even though there has been the withdrawal from the acquisition, there is a request made by the AMC to the Government requesting them that the land should be acquired under the Urban Land Ceiling Act. Annexure-A dated October 4, 1986 puts the controversy to an end by saying that the said land has been denotified and that, there has been a withdrawal of the acquisition of the land under Section 48(1) of the Land Acquisition Act. Thus, though there were the necessary notifications under Sections 4 & 6 of the Land Acquisition Act, 1894, later on there has been a withdrawal from the acquisition and the land has been declared to be out of the acquisition process.
11. When the reference is made to the letter dated May 8, 1986 written by the Government to the Municipal Corporation Annexure-5, it becomes evident that, the Government in the Revenue Department was of the opinion that it would be better if the lands are acquired under the Urban Land Ceiling Act. This letter is being pressed in service with great vehemence with a view to urge that the development plans and the designation of the land cannot be said to be deemed to have been lapsed under the provisions of Section 20(2) of the Act of 1976. This contention cannot be accepted because if the land is not acquired under the Land Acquisition Act, 1894 or by an agreement within a period of ten years from the date of coming into force of the Final Development Plans, then the owners ask and require the concerned authority to acquire the land, and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of the land shall be deemed to have been lapsed. The contention, therefore, coming from the learned Counsels for the respondents cannot be accepted upon a bare reading of the provisions contained in Section 20 of the Act of 1976.
12. The learned Counsels for the petitioners have placed reliance upon the unreported decision in Special Civil Application No. 2379 of 1992 dated December 27, 1992. The question which has fallen thereunder for the consideration of the learned single Judge was as to whether the Corporation can without anything more and simply on a ground that the land is reserved for a public purpose reject the application for development, which would have the effect of suspending all the rights in respect of such land for a period of ten years even if there is no acquisition commenced under Section 20 of the Act of 1976. Making a reference to the provisions contained under Section 20 of the Act of 1976, the learned single Judge has taken the view that the said provisions of the Act cannot be construed as debarring the owners from seeking the permission for the development, simply because the land is shown as reserved for public purpose. It appears to be a case in which after the lapse of about 7 years from the date of coming into force of the Final Development Plans the acquisition process had not commenced. It is in the background of these facts that the learned single Judge has taken the view that the petition was required to be allowed and the respondent Corporation was required to be directed to consider and decide the application of the petitioner for the permission to construct in accordance with law. The said decision was carried in appeal before the Letters Patent Bench, being Letters Patent Appeal No. 55 of 1994, which came to be dismissed by the Bench judgment dated 26th July 1994. The decision rendered, therefore, by the learned single Judge clearly supports the contention being raised by the learned Counsels for the petitioners in the instant petition.
13. Moreover, the Letters Patent Bench in Surat Municipal Corporation and Anr. v. Bhikhabhai Morarbhai Patel and Ors. 1994 (2) XXXV (2) GLR 947 says that, merely because there was the request of the Corporation made to the State Government under Section 78 of the Bombay Provincial Municipal Corporation Act, 1949, which has been acceded to, it cannot be said that the acquisition proceedings have commenced. It is made clear that the acquisition proceedings would commence when a Notification under Section 4 issued and till that takes place, the Corporation was under a duty to sanction the Building Plans.
14. In the instant case, it shall have to be appreciated with pertinence and emphasize that, there has been a withdrawal from the acquisition proceedings and no fresh notification under Section 4 of the Land Acquisition Act, 1894 has been issued. Therefore, a mere letter from the Government to the Corporation saying that, it would be advisable to acquire the land under the Urban Land Ceiling Act, 1976 can never be said to be tantamounting to the commencement of the process of the acquisition.
15. Thus, it appears that the Development Plan and the designation of the land in that respect have lapsed under Section 20 of the Act of 1976, and that, therefore, the respondents could not have refused to sanction the Building Plans submitted by, the petitioners on that count.
16. When a reference is made to Annexure-A which refused the sanctioning of the Building Plans it appears that the same enumerates eight objections. It is being pointed out by the learned Counsels for the petitioners that, all the remaining defects or objections have been cleared. If it is so, the Town Planning Officer of the Corporation should proceed ahead to sanction the Building Plans submitted by the petitioners, if they are otherwise found to be in accordance with law. If there are other defects or objections the same shall have to be rectified and or cured by the petitioners, so that the Town Planning Officer of the AMC can proceed ahead for considering the question of granting the permission for the building activity or the development of the land. While doing this exercise, needless it is to say that, the said authority would not say that the permission cannot be granted because the land is under reservations for the Public Housing Scheme of the AMC. The petition succeeds to the above said extent and the same is hereby accordingly allowed. Rule is made absolute, with no order as to cost.