Gujarat High Court
Bharatbhai vs State on 20 January, 2012
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Gujarat High Court Case Information System
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LPA/2449/2010 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2449 of 2010
In
SPECIAL CIVIL APPLICATION No. 9943 of 2010
To
LETTERS
PATENT APPEAL No. 2452 of 2010
In
SPECIAL CIVIL APPLICATION No. 9946 of 2010
With
CIVIL
APPLICATION No. 12547 of 2010
In
LETTERS PATENT APPEAL No. 2449 of 2010
With
SPECIAL
CIVIL APPLICATION No. 15115 of 2010
With
SPECIAL
CIVIL APPLICATION No. 10819 of 2011
With
SPECIAL
CIVIL APPLICATION No. 9806 of 2011
For
Approval and Signature:
HONOURABLE
THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHARATBHAI
ISHWARBHAI PATEL & 3 - Appellant(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 4 - Respondent(s)
=========================================================
====================================================================
Appearance
:
MR
SP MAJMUDAR for the Petitioners
MR SHITAL R.PATEL for Appellant(s) : 1 - 4.
MS SHRUTI
PATHAK, AGP for Respondent(s) : 1,
None for Respondent(s) : 2,4 -
5.
MR PRASHANT G.DESAI for Respondent.
MR KAUSHAL D PANDYA for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
THE ACTING CHIEF JUSTICE
MR.BHASKAR
BHATTACHARYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 20/01/2012
COMMON
CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) During the course of hearing of the above captioned Appeals and Writ Petitions, the Division Bench took notice of the fact that the petitioners in Special Civil Application No.9806 of 2011 and Special Civil Application No.10819 of 2011 have challenged the constitutional validity and vires of Section 48-A of the Gujarat Town Planning and Urban Development Act, 1976 (for short, 'the Act of 1976'). In view of the challenge to the constitutional validity of a piece of legislation, the matters have been placed before us as this Court has the determination in so far as the challenge to the constitutional validity of a piece of legislation is concerned.
We would like to clarify that we shall only examine the constitutional validity of Section 48-A of the Act of 1976 and after deciding the same, we shall leave for the Hon'ble Court concerned to decide the other issues involved in the two Appeals and three Writ Petitions, which are being heard analogous.
Brief resume of facts necessary for the purpose of adjudicating the main controversy can thus be summarised as under :-
Petitioners in Special Civil Application No.9806 of 2011 and Special Civil Application No.10819 of 2011 have been served with a notice by the Surat Municipal Corporation under Sections 48-A, 67, 68 of the Act of 1976 and Amendment Act, 1999, calling upon the petitioners to handover the possession of land to the Surat Municipal Corporation within fifteen days, failing which, the petitioners would be summarily evicted as per Rule 33-B of the Gujarat Town Planning and Development Rules, 1979 in light of the fact that the Gujarat Government has sanctioned a scheme being Town Planning Scheme under the provisions of Section 48-A of the Act of 1976 and the same has been implemented as per the Notification issued thereunder dated 15th October 2008. While challenging the legality and validity of such a notice issued by the Surat Municipal Corporation, the petitioners have also thought fit to challenge the constitutional validity of Section 48-A of the Act of 1976 as, according to the petitioners, Section 48-A is ultravires Articles 14, 19(1)(e), 21 and Section 300-A of the Constitution of India.
We have heard learned counsel Mr.S.P.Majmudar appearing for the petitioners on the limited issue as regards the constitutional validity of Section 48-A of the Act of 1976 and we have also perused the materials on record.
I. Contentions on behalf of the petitioners :
It has been vehemently contended by learned counsel that by virtue of provision of Section 48-A of the Act of 1976, the land vests in the appropriate authority without payment of any compensation to the aggrieved person. Counsel would submit that such a provision gives unbridled and unfettered power to the authority. He further submitted that Section 48-A is in conflict with the provisions of Sections 49 to 67 of the Act of 1976 since in a given case, after a draft Town Planning Scheme is prepared, the preliminary scheme may not be sanctioned by the State Government. Giving example of a hypothetical situation, counsel submitted that in a given case, the appropriate authority, by virtue of powers under Section 48-A of the Act of 1976, may demolish the houses etc. and thereafter, the preliminary scheme may not be sanctioned which would leave the affected person in an anomalous or rather irreversible situation. Counsel also submitted that Section 48-A virtually takes away the right of the affected person to give objections to the notice of the Town Planning Officer and virtually makes Rule 26 of the Rules redundant. He submitted that Section 48-A of the Act of 1976 is contrary to the statutory provisions of the Parent Act. He, therefore, prayed that Section 48-A of the Act of 1976 be declared as unconstitutional as it is ultra vires Articles 14, 19(1)(e), 21 and Section 300-A of the Constitution of India.
II.Contentions on behalf of respondent nos.2 and 3 :
Learned counsel Mr.Prashant G.Desai appearing for Surat Municipal Corporation brought to our notice that the challenge to the constitutional validity of Section 48-A of the Act of 1976 was a subject matter of challenge before the Division Bench of this High Court and the Division Bench has negatived the challenge upholding the validity of Section 48-A. Counsel brought to our notice a reported decision on this issue in the case of Govindbhai Hirabhai Surati and others v/s. State of Gujarat and others, reported in 2003(2) GLR 950.
Counsel, therefore, submitted that in view of the fact that the validity of Section 48-A has already been upheld, there cannot be a challenge for the second time.
III.
Rejoinder of learned counsel for the petitioners to the contentions of respondent nos.2 and 3:
Learned counsel Mr.Majmudar submitted that it is true that constitutional validity of Section 48-A of the Act of 1976 was a subject matter of challenge in the past and the Division Bench of this Court has upheld the validity but the Division Bench, while upholding the validity of Section 48-A of the Act of 1976, has not touched the issue as to whether by virtue of Section 48-A the other provisions of the Act i.e. Sections 49 to 67 are being rendered redundant and nugatory. He, therefore, strenuously urged that this Court may re-examine the issue from a different perspective as canvassed by the petitioners.
Having heard learned counsel for the respective parties and having gone through the materials on record, we shall now proceed to examine the limited issue, which we are called upon to determine.
Section 48-A of the Act of 1976 reads as under :-
"Sec.48-A. Vesting of land in appropriate authority.
Where a draft scheme has been sanctioned by the State Government under sub-section (2) of Section 48, all lands required by the appropriate authority for the purposes specified in clauses (c), (f), (g) or (h) of sub-section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances.
Nothing in sub-section (1) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section.
The provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if,--
(i) sanctioned draft scheme were a preliminary scheme, and
(ii) in sub-section (1), for the words "comes into force", the words, brackets and figures "the date on which the draft scheme is sanctioned under sub-section (2) of section 48" were substituted."
The Division Bench of this Court, in Govindbhai Hirabhai Surati's case (supra), while upholding the validity, held as under :-
"The Court has read and reread the provisions of Section 48-A extracted above, with the assistance of the learned counsels appearing for the parties, but, has not been able to find any fetter on the right of the petitioners to invoke the power of `judicial review' of the Courts having such power.
Undoubtedly, power of 'judicial review' has been identified as one of the basic structures of the Constitution, and any attempt to take away that power from its repository would be unconstitutional. In the instant case, there is no inkling of any such attempt by any stretch of imagination. The argument of the learned counsel of the petitioners in this regard is totally devoid of substance, and deserves to be rejected.
The submission of the learned counsel of the petitioners that Section 48-A of the Act confers upon the State Government unguided power for taking possession of the land covered by the sanctioned Draft Town Planning Scheme rendering it arbitrary and unconstitutional is utterly misconceived. A bare perusal of the provisions of Section 48-A of the Act indicates that it, by itself, does not confer any power on the State to take possession of the land covered by the sanctioned Draft Town Planning Scheme. Indeed, it declares automatic vesting of the land upon existence of the conditions prescribed therein. The Government has not been given any power, discretion or choice in the matter of vesting. In other words, vesting contemplated under Section 48-A is legislative vesting for specific purposes.
The submission of the learned counsel of the petitioners that Section 48-A of the Act, in substance, has the effect of depriving the petitioners of their land either without compensation or with inadequate compensation has no legs to stand. The argument clearly betrays the ignorance of the provisions of Sections 82 to 87 of the Act, which provide detailed mechanism in respect of compensation to the affected persons. Therefore, the argument of the learned counsel of the petitioners cannot be sustained."
It is a settled position of law that a statute can be invalidated or held unconstitutional --
(i) if it is ultra vires the Parent Act;
(ii) if it is contrary to the statutory provisions other than those contained in the Parent Act;
(iii) if law making power has been exercised in bad faith;
(iv) if it is not reasonable and it goes against the legislative policy; and
(v) if it does not fulfill the object and purpose of the enabling Act.
It is also a settled position of law while examining the constitutionality of a statute that it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. There is a presumption in favour of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt. A statute cannot be declared unconstitutional merely because in the opinion of the Court it violates one or more of the principles of liberty, of the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution.
The contention of the learned counsel that Section 48-A which provides for vesting of land in appropriate authority upon draft scheme being sanctioned takes away the valuable right of the owner of such land as provided under Sections 49 to 67 of the Act, is without any merit and it deserves to be rejected outright for a very simple reason. Section 48-A(2) is the answer to the contention of the learned counsel for the petitioners.
Section 48-A(2) reads as under :
"Nothing in sub-section (1) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section."
Thus, clause (2) to Section 48-A makes it very clear that the right of the owner of the land vesting in the appropriate authority under sub-section (1) shall not be affected in any manner. The legislature itself has taken care to protect the right of the owner of the land vesting in the appropriate authority despite the fact that the Act provides for vesting of land in appropriate authority upon draft scheme being sanctioned by the State Government.
On this short ground alone, the challenge to the constitutional validity of Section 48-A of the Act of 1976 must fail and we hold it accordingly. As we have answered the issue as regards the constitutional validity of Section 48-A of the Act of 1976 in negative, the matters may now be placed before the regular Bench so far as the other issues are concerned.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B.Pardiwala, J.) /moin Top