Gujarat High Court
Deepakbhai J. Shah vs State Of Gujarat on 31 August, 2004
Equivalent citations: AIR2005GUJ115, (2005)1GLR373, AIR 2005 GUJARAT 115
Author: M.R. Shah
Bench: M.R. Shah
JUDGMENT M.R. Shah, J.
1. As common question of law arises in all these matters, these Special Civil Applications are disposed of by this common judgment and order.
2. The common question of law arises in all the aforesaid Special Civil Applications is with regard to interpretation of Section 20 of the Gujarat Town Planning & Urban Development Act, 1976 [hereinafter referred to as "the Act"] and also with regard to lapse of reservation under Section 20 of the Act.
3. Special Civil Application No. 17409 of 2003 is with regard to land bearing Survey No. 642, 643/1 and 654 situate at Village Kapurai, Taluka/District-Vadodara and the land is reserved under the Town Planning Scheme for Gujarat Housing Board [hereinafter referred to as "GHB"].
3.1. Special Civil Application No. 17410 of 2003 is with respect to land bearing Survey No. 333/2 situate at Village Tandalja and the said land in question is reserved under the Town Planning Scheme for Gujarat Slum Clearance Board [hereinafter referred to as "GSCB"].
3.2. Special Civil Application No. 17416 of 2003 is in respect to land bearing Survey No. 645, Block No. 401 situate at Village Kapurai, Taluka & District Vadodara which is reserved under the Town Planning Scheme which has become final for the GHB.
3.3. So far as Special Civil Application No. 17418 of 2003 is concerned, the said petition is in respect to land bearing Survey No. 240/1 situate at Village Atladra, Taluka & District-VAdodara and the said land is reserved for GSCB under the town planning scheme which has become final.
3.4. Special Civil Application No. 17420 of 2003 relates to land bearing Survey No. 644/2 situate at Village Kapurai, Taluka & District-Vadodara which land is reserved for GHB under the town planning scheme which has become final.
3.5. Special Civil Application No. 17422 of 2003 is relating to lands bearing Survey No. 328/1, 332/2 of Block No. 275, Survey No. 326 and 327 of Block No. 261, and Survey No. 325 of Block No. 262/Paiki situate at Village Bhayli, Taluka & District-Vadodara, which are reserved for GSCB under the town planning scheme which has become final.
4. It is the common submission on behalf of the petitioners in each of the petition that the petitioners served notice under Section 20 of the Act more particularly, Section 20(2) of the Act requiring the respondents to acquire the lands in question as a period of more than 10 years has elapsed and after serving of the notice under Section 20(2) of the Act as within the period of six months the land was not acquired, the reservation in favour of respective public bodies has lapsed. 5. For the purpose of determination of the present Special Civil Applications, following provisions of The Gujarat Town Planning and Urban Development Act, 1976 are required to be considered :
"Sec. 2. Definition.
In this Act, unless the context otherwise requires,__
(i) .........
(ii) .........
(iii) "appropriate authority" in relation to a development area, means an area development authority or an urban development authority, as the case may be;
(iv) "Area Development Authority" means an area development authority constituted under section 5 [and includes a local authority designated as such under sub-section (1) of Section 6 or Government Company designated as such under Section 6A].
Sec.12. Contents of draft development plan.
(1) A draft development plan shall generally indicate the manner in which the use of land in the area covered by it shall be regulated and also indicate the manner in which the development therein shall be carried out.
(2) In particular, it shall provide, so far as may be necessary, for all or any of the following matters, namely :-
(a) proposals for designating the use of the land for residential, industrial, commercial, agricultural and recreational purpose;
(b) proposal for the reservation of land for public purposes, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, public assembly, museums, art galleries, religious buildings, play grounds, stadia, open spaces, dairies and for such other purposes as may, from time to time, be specified by the State Government;
(c) proposals for designation of areas for zoological gardens, green belts, natural reserves and sanctuaries;
(d) transport and communications, such as roads, highways, parkways, railways, waterways, canals and airport, including their extension and development;
(e) proposals for water supply, drainage, sewage disposal, other public utility amenities and services including supply of electricity and gas;
(f) reservation of land for community facilities and services;
(g) proposals for designation of sites for service industries, industrial estates and any other industrial development on an extensive scale;
(h) preservation, conservation and development of areas of natural scenery and landscape;
(i) preservation of features, structures or places of historical, natural, architectural or scientific interest and of educational value;
(j) proposals for food control and prevention of river pollution;
(k) proposals for the reservation of land for the purpose of Union, any State, local authority or any other authority or body established by or under any law for the time being in force;
(l) the filling up or reclamation of low lying, swampy or unhealthy areas or levelling up of land;
(m) provision for controlling and regulating the use and development of land within the development area, including imposition of conditions and restrictions in regard to the open space to be maintained for buildings, the percentage of building area for a plot, the location, number, size, height, number of storyes and character of buildings and density of built up area allowed in specified area, the use and purposes to which a building or specified areas of land may or may not be appropriated, the sub-divisions of plots, the discontinuance of objectionable uses of land in any building and the sizes of projections and advertisement signs and hoarding and other matters as may be considered necessary for carrying out the objects of this Act;
(n) provision for preventing or removing pollution of water or air caused by the discharge of waste or other means as a result of the use of land;
(o) such other proposals for public or other purposes as may from time to time be approved by the area development authority or as may be directed by the State Government in this behalf."
"Sec.20. Acquisition of land.
(1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of sub-section (2) of section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894, I of 1894.
(2) If the land referred to in 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 the proceedings under the Land Acquisition Act, 1894 I of 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 acquisitions, the designation of the land as aforesaid shall be deemed to have lapsed."
Sec.112. Service of notice, etc. (1) All documents including notices and orders required by this Act or any rule or regulation made thereunder to be served upon any person shall, save as otherwise provided in this Act or rule or regulation, be deemed to be duly served,__
(a) where the document is to be served on a Government department, railway, local authority, statutory authority, company, corporation, society or other body, if the document is addressed to the head of the Government department, General Manager of the railway, secretary or principal officer of the local authority, statutory authority, company, corporation, society or other body at its principal or branch office, or the local or registered office, as the case may be, and is either__
(i) sent by registered post to such office, or
(ii) delivered at such office;
(b) where the person to be served is a partnership, if the document is addressed to the partnership at its principal place of business, identifying it by the name or style under which its business is carried on and is either__
(i) sent by registered post to such place of business, or'
(ii) delivered at the said place of business; and
(c) in any other case, if the document is addressed to the person to be served and-
(i) is given or tendered to him, or
(ii) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business, or is given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building to which it relates, or
(iii) is sent by registered post to that person, (2) Any document which is required or authorised to be served on the owner or occupier of any land or building may be addressed to the owner or occupier, as the case may be, of that land or building (naming or describing that land or building) without any further name or description and shall be deemed to be duly served__
(a) if the document so addressed is sent or delivered to accordance with clause (c) of sub-section (1) or
(b) if the document so addressed or a copy thereof so addressed is delivered to some person on the land or building, (3) Where a document is served on a partnership in accordance with this section, the document shall be deemed to be served on each partner.
(4) For the purpose of enabling any document to be served on the owner of any property, the appropriate authority or the Town Planning Officer may by notice in writing require the occupier (if any) of the property to state the name and address of the owner thereof.
(5) Where the person on whom a document is to be served is a minor, then service upon his guardian or any adult member of his family shall be deemed to be service upon the minor."
6. It is the case of the petitioner of Special Civil Application No. 17409 of 2003 that Draft Development Plan came to be sanctioned by the State Government on 22.12.1983. The Final Development Plan came into force with effect from 25.1.1984 under which the land in question came to be designated and reserved for respondent No.3 GHB. It is the case of the petitioner that the said land was required to be acquired by the GHB within a period of 10 years from 25.1.1984 and the said period of 10 years expired on 25.1.1984. As the land was neither acquired by agreement nor steps were taken for acquisition notice under sub-section (2) of Section 20 of the Act came to be served upon the respondent No.3 GHB on 15.4.1995 requiring it to initiate steps for acquiring the land within a period of 6 months from the date of receipt of the notice. From the record, it seems that the said notice was given by the predecessors of the petitioner. It is the case of the petitioner that as no steps were taken for acquisition under the Land Acquisition Act by the authority within six months of the receipt of the notice dated 15.4.1995, the reservation has lapsed on the expiry of 6 months from 15.4.1995 and the authority revised the development plan under Section 21 of the Act which came to be sanctioned by the State Government by notification dated 25.10.1996. In the meantime the petitioner purchased the land in question from the original land owner. The petitioner therefore served notice under sub-section (2) of Section 20 of the Act upon Vadodara Urban Development Authority ("VUDA" for short) to initiate steps for acquiring the subject within a period of six months from the date of the notice dated 18th February 2003. It is the case of the petitioner that despite service of notice upon respondent No.2 VUDA which according to the petitioner came to be forwarded to the GHB for necessary action no steps were taken by the authorities as contemplated under sub-section (2) of Section 20 of the Act and therefore the reservation has been lapsed.
7. It is the case of the petitioners in Special Civil Application No. 17410 of 2003 that the Draft Plan came to be sanctioned by the State Government on 22.12.1983; the land in question came to be reserved for GSCB; and the final development plan came into force with effect from 25.1.1984. It is the case of the petitioners that within 10 years from 25.1.1984, i.e. on or before 25.1.1994 it was obligatory on the part of the competent authority to either acquire the land by agreement or otherwise to take steps for acquisition. As nothing was done, the petitioners served legal notice upon the respondent No.3 GSCB under sub-section (2) of Section 20 on 10th August 1998 requiring it to initiate steps for acquiring the land within a period of six months from the date of receipt of the notice. As nothing was done, again the petitioners served notice under sub-section (2) of Section 20 of the Act on 17.1.2003 to initiate steps for acquiring the land within a period of six months from the date of receipt of the said notice. However, according to the petitioners as no steps were taken for acquiring the subject land within that period the reservation has been elapsed. This petition is therefore filed.
8. It is the case of the petitioners in Special Civil Application No. 17416 of 2003 that the Draft Development Plan came to be sanctioned by the State Government on 22.12.1983 and the Final Development Plan came into force on 25.1.1984 and the land in question came to be designated and reserved for GHB. It is the case of the petitioners that it was obligatory on the part of the authority either to acquire the subject land by agreement or otherwise to take steps for acquisition within 10 years, i.e. on or before 25th January 1994. However as no steps were taken the petitioners served notice under sub-section (2) of Section 20 of the Act upon the VUDA to initiate steps for acquiring the subject land within a period of 6 months from the date of receipt of the notice dated 18th February 2003 and inspite of such notice no steps were taken the reservation in favour of the GHB has been lapsed which has given rise to filing of this petition.
9. So far as Special Civil Application No. 17418 of 2003 is concerned, the petitioners contended that the Draft Plan came to be sanctioned by the State Government on 22.12.1983 and Final Development Plan came into force with effect from 25.1.1984. The land in question came to be reserved for GSCB within 10 years from 25.1.1984 which was required to be acquired for which steps were required to be taken. It is the additional case of the petitioners that in fact the GSCB addressed letter to the predecessors of the petitioners that they did not require the subject land and it appeared to the petitioners that GSCB has moved the State Government for dereservation of the subject land. (In fact, nothing is on record so far as this aspect is concerned). It is the case of the petitioners that a revised development plan under Section 21 of the Act came to be sanctioned by the State Government by notification dated 25.10.1996. It is the petitioners' case that as within 10 years the land in question was not acquired nor any steps were taken for acquisition they serviced notice under sub-section (2) of Section 20 of the Act on 11th February 2003 upon the VUDA to initiate steps for acquiring the subject land within a period of 6 months from the date of receipt of the notice. It is the case of the petitioners that as the land in question is neither acquired nor steps are taken for acquisition the reservation has been lapsed this petition has been filed.
10. So far as Special Civil Application No. 17420 of 2003 is concerned, here also it is the case of the petitioner that draft development plan came to be sanctioned by the State Government on 22.12.1983 and final development plan came into force with effect from 25.1.1984 whereby the land in question was designated/reserved for GHB; within 10 years from 25.1.1984 the competent authority was required to either acquire the land by agreement or was required to initiate steps for acquisition, i.e. on or before 25.1.1994; and as nothing was done within 10 years the notice came to be served upon the respondent No.3 GHB on 15.4.1995 requiring it to initiate steps for acquiring the land within a period of 6 months from the date of receipt of the notice. It seems that the said notice dated 15.4.1995 was given by the predecessor of the petitioner and not by the petitioner. The authority revised the development plan under Section 21 of the Act which came to be sanctioned by the State Government vide notice dated 25.10.1996. Thereafter in the meantime the petitioner purchased the land in question and he became owner of the land and therefore the petitioner served notice under sub-section (2) of Section 20 of the Act upon VUDA to initiate steps for acquiring the subject land within a period of 6 months from the date of receipt of the notice dated 18th February 2003. However as nothing was done within the period of six months from the date of receipt of the notice it is the case of the petitioner that reservation has been lapsed and hence filed the present Special Civil Application.
11. So far as Special Civil Application No. 17422 of 2003 is concerned, it is the case of the petitioners that the State Government sanctioned the draft plan on 22.12.1983 and on coming into force of final development plan with effect from 25.1.1984 the lands in question came to be reserved for GSCB. The authority revised the development plan under Section 21 of the Act by notification dated 25.10.1986. As the lands in question were not acquired by agreement and/or no steps were taken for acquisition of the land in question within the period of 10 years the petitioners served notice dated 4th February 2003 under sub-section (2) of Section 20 of the Act on VUDA to initiate steps for acquiring the subject land within a period of six months from the date of receipt of the notice. It is the case of the petitioners that as nothing was done the reservation has been elapsed and therefore the present petition is filed.
12. Shri NK Pahwa, learned advocate appears on behalf of the petitioners in each of the petition; Shri SB Pandit with Shri Shailesh Parikh, learned advocates appear on behalf of Gujarat Housing Board; Shri DA Bhambania, learned advocate appears for Gujarat Slum Clearance Board; and Shri MD Pandya, learned advocate appears on behalf of Vadodara Urban Development Authority in all the petitions. The learned advocates appearing on behalf of the respective parties are heard at length.
13. Shri NK Pahwa, learned advocate appearing on behalf of the petitioners in each of the petitions had mainly argued that as the land in question is neither acquired by agreement nor any steps are taken for acquisition of the land in question within a period of six months from the date of service of the notice under sub-section (2) of Section 20 the reservation of the land in question has been lapsed. He has further submitted that in two of the cases notice was served upon the appropriate authority for whose benefit the lands are reserved by the predecessor-in-title of the petitioners and in rest of the cases notices have been served upon VUDA and still no steps are taken for the purpose of acquisition for land by agreement and/or no steps are taken for initiating acquisition proceedings. Shri Pahwa, learned advocate appearing on behalf of the petitioners has relied upon the judgment of the Hon'ble Supreme Court of India in the case of Bhavnagar University vs. Palitana Sugar Mills (Pvt.) Ltd., reported in (2003) 2 SCC Page 111; and in the case of Babu Barakiya Thakur Vs. State of Bombay - AIR 1960 S.C. 1203; and judgment of this Court in the case of Palitana Sugar Mills (Pvt.) Ltd., vs. State of Gujarat, reported in (2001) 2 GLH Page 294. Relying upon the aforesaid Judgments, Shri Pahwa, has made the following submissions:
(i) 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, i.e. 10 years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof, no action for acquisition is taken, the designation shall lapse.
(ii) The Town Planning Act is a beneficial provision and therefore it must be liberally construed so as to fulfill the statutory purpose and not frustrate it.
(iii) The purpose and object of creating a legal fiction in the Statute is well-known. When a legal fiction is created, it must be given its full effect.
(iv) Taking steps for acquisition would mean any stage in the direction of acquisition of land by agreement or by taking proceedings under the Land Acquisition Act.
(v) The proceedings begin with a Government notification under Section 4 that land in any locality is needed or is likely to be needed for any public purpose.
Shri Pahwa, learned advocate appearing for the petitioners has also further submitted that VUDA is the competent authority to whom notice under Section 20 has to be addressed in view of Section 2(iii), 2(iv), Section 5, 7(i)(vi) and 19 of the Act. He has further submitted that Section 20 of the Act empowers an owner or a person interested to give notice to the authority. So far as the steps to commence acquisition proceedings are concerned, Shri Pahwa has argued that the phrase "no steps are commenced for its acquisition" has to be read in the context of the provisions of Section 20 as a whole. He has further submitted that the steps under the Land Acquisition Act commence only upon issuance of Section 4 notification and unless and until the notification under Section 4 of the Land Acquisition Act is issued with regard to the land in question it cannot be said that the step to commence the acquisition has been initiated and therefore he has submitted that if within a period of six months from the date of receipt of the notice under sub-section (2) of Section 20, the notification under Section 4 of the Land Acquisition Act is not issued it cannot be said that the steps are taken for commencing the acquisition and therefore the reservation is lapsed. On the basis of the aforesaid submissions, Shri Pahwa, learned advocate appearing on behalf of the petitioners had requested to allow the present Special Civil Applications by issuing an appropriate declaration that the lands in question stand dereserved from the reservation/designation in view of the provisions of sub-section (2) of Section 20 and to direct the respondent No.2 to accept the plan for development from the petitioners and to process the same in accordance with law and to take appropriate decision as if there is no reservation/designation.
14. Shri MD Pandya, learned advocate appearing on behalf of the VUDA, has made following submissions;
(1) In absence of any notice upon the authority for whose benefit the land is reserved, there is no question of lapsing of the reservation;
(2) The provisions of Section 20 are required to be bifurcated into three parts;
(i) The Area Development Authority or any other authority for whose purpose the land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of sub-section (2) of Section 12 may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894;
(ii) If the land referred to in sub-section (1) is not acquired by agreement within a period of 10 years from the date of coming into force of the final development plan or if proceedings under Land Acquisition Act, 1894 are not commenced within such period, there is a right accrued in favour of owner or any person interested in land to serve a notice on the authority concerned requiring it to acquire the land;
(iii) 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 been lapsed.
14.1. On the basis of the aforesaid submissions, Shri Pandya has submitted that if within 10 years from the date of coming into force of the final development plan if the land is not acquired by agreement or if the proceedings under the Land Acquisition Act are not commenced within such period, there will be a right accrued in favour of the owner and the authority concerned is required to be served a notice to acquire the land. Shri Pandya has submitted that considering the provisions of Section 20 and the Scheme of the Act notice under sub-section (2) of Section 20 is required to be served upon the authority concerned, i.e., the authority for whose benefit the land is reserved as it is that authority who has to get the land acquired and initiate proceedings for acquisition and/or for acquiring the land by agreement. Shri Pandya has further submitted that accordingly the notice was required to be served upon either upon the GHB or GSCB respectively, and notice upon VUDA only cannot be said to be sufficient for the purpose of attracting the provisions of sub-section (2) of Section 20 of the Act and in absence of any notice upon the authority concerned, i.e., either GHB or GSCB, the reservation will not lapse. He has further submitted that even after service of the notice under sub-section (2) of Section 20 on the "authority concerned" requiring it to acquire the land if it is shown that the steps are taken by the authority concerned for commencement for its acquisition, then also the reservation will not lapse. He has submitted that in the first part of sub-section (2) of Section 20, what is contemplated is not acquiring the land by agreement and not commencing any proceeding under Land Acquisition Act, 1894, and so far as second part of sub-section (2) of Section 20 is concerned, it contemplates not acquiring the land by agreement or not taking steps for commencement for its acquisition within six months. He has submitted that commencement of proceedings under the Land Acquisition Act which is contemplated in first part of sub-section (2) of Section 20 is different than that of taking steps for commencement for its acquisition which is contemplated in the second part of sub-section (2) of Section 20. On the basis of the aforesaid submissions, Shri Pandya has submitted that after receipt of the notice under sub-section (2) of Section 20 if it is shown by the "authority concerned", i.e., the authority for whose benefit the land is reserved has taken steps for commencement for its acquisition then the reservation will not lapse. Shri Pandya has submitted that after receipt of the notice by the authority concerned if the authority concerned approaches the competent authority under the Land Acquisition Act for commencement of its acquisition then it can be said to be taking steps for commencement for its acquisition as the authority concerned is required to depend upon the competent authority under the Land Acquisition Act, i.e., the Special Land Acquisition Officer and/or Collector, and the competent authority and the Collector under the Land Acquisition Act even before issuance of the notification under Section 4 is required to consider so many other aspects under the Land Acquisition Act, such as requirement of the land, budgetary provision, finance etc. So, the moment the authority concerned for whose benefit the land is reserved approaches the authority under the Land Acquisition Act for acquisition of the land it can be said to be the steps taken for commencement for tis acquisition and therefore the reservation will not lapse. Shri Pandya has submitted that therefore the notice only upon the VUDA is not sufficient as VUDA is not required to acquire the land either by agreement and/or VUDA is not required to take steps for commencement for its acquisition. It is the authority concerned for whose benefit the land is reserved is required to acquire the land by agreement or is required to take steps for commencement for its acquisition.
14.2. Shri Pandya, learned advocate has also submitted that assuming that the notice is served upon the authority concerned for whose benefit the land is reserved then also the notices are required to be served in the manner which is provided under Section 112 of the Act. Serving of a notice upon the Officer other than which is contemplated under Section 112 of the Act cannot be considered to be a valid service of notice under the Act and therefore also if the notice is served upon the officer and/or the authority other than which is mentioned/contemplated under Section 112 of the Act under sub-section (2) of Section 20, then also the acquisition will not lapse. He has submitted that the provisions of law are required to be interpreted and construed as it is and in strict sense.
15. Shri SB Pandit, learned advocate who appears with Shri Shailesh Parikh on behalf of GHB, has adopted the arguments submitted by learned advocate Shri Pandya on behalf of VUDA and while adopting the same, Shri Pandit has further submitted that notice under sub-section (2) of Section 20 of the Act by the petitioners to VUDA is not a legal and valid notice as VUDA is not the "authority concerned" to acquire or to take steps for acquisition of the subject lands. He has further submitted that the lands in question are reserved for GHB for public purpose of housing, it is GHB which alone is the "authority concerned" within the meaning of the said expression under sub-section (2) of Section 20 of the Act. He has further submitted that it is the GHB which has to negotiate and enter into agreement with the land owners and submit to the Land Acquisition Officer the proposal for acquisition of the land; comply with various requirements of the Land Acquisition Officer; pursue the matter in which the land is acquired and possession is obtained; and finally it is the GHB which has to pay compensation for the land so acquired, and VUDA has no role to play at any stage in the entire process of acquisition of land. He has further submitted that the Superintending Engineer of GHB, Vadodara is not the Principal Officer of GHB. The Principal Officer of the GHB is Housing Commissioner and under Section 112 of the Act the notice is required to be addressed to the Principal Officer of the GHB and therefore the notice alleged to have been served by the predecessor-in-title cannot be said to be a valid notice under the provisions of the Act. So far as service of notice alleged to have been served by Vrajlal D. Patel alleged to be the predecessor-in-title of the petitioners in Special Civil Application No. 17409 of 2003 is concerned, Mr. Pandit has firstly submitted that there is no reference to the said notice dated 15.4.1995 served by Vrajlal D. Patel to the respondent No.3 in the petition and having realised during the course of the argument that the notice to VUDA might not be held to be a legal and valid one, a Rejoinder is filed subsequently taking the above stand and therefore the petitioners cannot alter the cause of action by way of Rejoinder. He has further submitted that as stated above the notice is served upon and addressed to the Superintending Engineer, GHB, Vadodara which cannot be said to be a valid notice under Section 112 of the Act. He has further submitted that there was nothing on record to show that Vrajlal D. Patel was the owner of the land in question. He has further submitted that even considering the last affidavit filed by the petitioners in SCA No. 17409/2003 the petitioners have stated that "It appears that Shri Vrajlal D. Patel sold the subject land to Vasantlal Jhaverdas Shah who in turn sold the said land to the petitioner by executing the sale deed", and from this it is clear that the petitioner himself is not sure whether Vrajlal D. Patel sold the land to Vasantlal Jhaverdas Shah and, if so, when he sold, and therefore the alleged notice served by Vrajlal D. Patel cannot be considered and even the present petition is not based upon the notice served by Vrajlal D. Patel but it is based upon the notice served by the petitioners.
16. He has further submitted that steps were initiated right from the very beginning by providing materials before the Land Acquisition Officer/Collector for the purpose of acquisition of the land and there is correspondence between GHB and Land Acquisition Officer/Collector and therefore the moment it is shown that steps are taken for commencing for acquisition of the land by the authority concerned the reservation will not lapse. He has further submitted that in the judgment relied upon by the petitioners of the Hon'ble Supreme Court of India in the case of Palitana Sugar Mills (Supra), the aforesaid aspect with regard to taking steps for commencement of acquisition has not been considered at all and the notice served upon the VUDA and non-service of the notice upon the authority concerned is also not considered and therefore it is submitted that the said judgment will not be helpful to the petitioner and therefore in the facts of the case he requested to dismiss all the Special Civil Applications.
17. Shri D.A. Bhambhania, learned advocate who appears on behalf of GSCB has also adopted the arguments on behalf of VUDA as well as the GHB. He has further submitted that notices are required to be served to the Gujarat Slum Clearance Board to its Chief Executive, i.e., Secretary and no such notice has been received. He has further submitted that in fact no notice has been received by the GSCB as alleged in the petition. He has further submitted that assuming without admitting that the notice was served then also at the relevant time when the notice was issued the petitioners were not the owners of the land in question and the locus assumed on the date do not confer retrospective right in favour of the parties when it has not been challenged by the parties in any manner and/or method and therefore requested to dismiss the present Special Civil Applications.
18. Heard the learned advocates appearing on behalf of the parties at length.
19. As per sub-section (iii) of sub-section (2) of Section 20, the appropriate authority means 'Area Development Authority' or 'Urban Development Authority' as the case may be. As per sub-section (iv) of sub-section (2) of Section 20, 'Area Development Authority' means 'Area Development Authority' constituted under Section 5 and includes a local authority designated as such under sub-section (1) of Section or Government Company designated as such under Section 6(a). In the present case, VUDA is the Area Development Authority. Section 20 provides for contents of Draft Development Plan. Under Section 12, while preparing a draft development plan proposals for the reservation of the land for the purpose of Union, any State, local authority or any other authority or body established by or under any law for the time being in force are required to be made. Thus, while preparing a Draft Development Plan and considering the need of the authority or body established by Code or under any law for the time being in force is required to be made such as reservation for GHB, and reservation for Gujarat Slum Clearance Board. Thus, in the present case while preparing the Draft Development Plan the lands came in question came to be reserved for Gujarat Housing Board or Gujarat Slum Clearance Board respectively looking to the need of the said authorities. Under the provisions of the Act and considering the scheme of the Act, the Draft Development Plan is required to be framed and prepared by VUDA the appropriate authority. However, considering the provisions of the Act and the scheme of the Act the land is in fact required to be acquired either by agreement and/or the steps are required to be taken for the purpose of commencement of the acquisition by the authority for whose benefit the land is reserved, i.e., in the present case GHB or GSCB. Even on completion of the acquisition the compensation for the land which is acquired is also required to be paid by the GHB or GSCB, as the case may be. Thus, at no point of time the Area Development Authority, i.e., in the present case, VUDA, is required to take any steps for the purpose of acquisition of the land in question either by agreement and/or to take steps for commencement of its acquisition. Considering the aforesaid scenario, the following points are required to be considered in the present Special Civil Applications;
(i) Whether notice only upon the Area Development Authority and not upon the authority for whose benefit the land is reserved is sufficient for attracting the provisions of sub-section (2) of Section 20, serving a notice under sub-section (2) of Section 20 of the Act only upon the Area Development Authority, i.e., in the present case, VUDA, would suffice for the purpose of lapsing of the reservation ?
(ii) What can be said to be 'commencement of the proceedings under the Land Acquisition Act and the steps for commencement of its acquisition';
(iii) Service of notice issued under sub-section (2) of Section 20 on the authority other than the authority which is contemplated under Section 112 of the Act would suffice under sub-section (2) of Section 20 of the Act.
20. Considering the provisions of Section 12 of the Act, while preparing the Draft Development Plan it was considered thought it fit to have the reservation for Gujarat Housing Board or Gujarat Slum Clearance Board. Thus, the GHB or GSCB is the "authority concerned", so far as sub-section (2) of Section 20 is concerned. As stated hereinabove, Section 20 of the Act is required to be divided into three parts;
(1) The Area Development Authority or any authority for whose purpose the land is designated in the final development plan may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894;
(2) If the land referred to in sub-section (1) of Section 20 is not acquired by agreement within a period of 10 years from the date of coming into force of the final development plan or if the proceedings under the Land Acquisition Act are not commenced within such period, there will be a right accrued in favour of the owner or any person interested in the land to serve a notice on the "authority concerned" requiring it to acquire the land;
(3) 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 then designation of the land shall be deemed to have lapsed.
Considering the provisions of the Act, the land can be designated as reserved either for the Area Development Authority itself and/or for any other authority. If the land is reserved for Area Development Authority such as Parks, Gardens, Schools etc., then it is for the Area Development Authority to acquire the land by agreement or under the provisions of Land Acquisition Act. If the land is designated and reserved for any other authority such as Gujarat Housing Board or Gujarat Slum Clearance Board, then the land in question is required to be acquired either by agreement or under the provisions of the Land Acquisition Act by the said authorities. In the present case, the land in question is reserved for Gujarat Housing Board and Gujarat Slum Clearance Board respectively. Thus, the land in question is required to be acquired either by agreement or under the provisions of the Land Acquisition Act by GHB and GSCB respectively. Under sub-section (2) of Section 20, if the land is not acquired by agreement within a period of 10 years from the date of coming into force of the final development plan or if the proceedings under the Land Acquisition Act are not commenced within such period there will be a right in favour of the owner or any person interested in the land to serve a notice on the "authority concerned", i.e., in the present case on the Gujarat Housing Board and Gujarat Slum Clearance Board respectively requiring them to acquire the land. What is contemplated in the first part of sub-section (2) of Section 20 is that if the land is not acquired by agreement or if the proceedings under the Land Acquisition Act are not commenced, considering the scheme of the Act and also Land Acquisition Act, the proceedings under the Land Acquisition Act, 1894 can be said to be commenced when the Notification under Section 4 of the Land Acquisition Act is issued. So, if the notification under Section 4 of the Act is not issued within a period of 10 years, in that case there will be a right in favour the person interested to serve a notice on the "authority concerned", i.e. GHB and GSCB respectively requiring them to acquire the land. After the service of the notice on the authority concerned, i.e., in the present case GHB and GSCB if the land in question is not acquired (by agreement) or no steps are commenced for its acquisition, then the designation of the land shall be deemed to have lapsed. Thus, what is contemplated in the second part of sub-section (2) of Section 20 is not with regard to to commencement of proceedings under the Land Acquisition Act but to take steps for commencing its acquisition. So, the moment it is shown that after receipt of notice under sub-section (2) of Section 20 that the steps are taken by the authority concerned for commencement of its acquisition, then designation of the land will not lapse. There is a purpose for it and intention of Legislature while having two distinctions is very clear and there is some justification also. As the land is required to be acquired for the authority concerned is either by Collector and/or Special Land Acquisition Officer under the provisions of the Land Acquisition Act. So everything ultimately depends upon the Collector and/or the Land Acquisition Officer under the provisions of the Land Acquisition Act. The "authority concerned", for whose benefit the land is reserved, is dependent upon the authorities under the Land Acquisition Act so far as acquisition of the land in question is concerned. Even for the purpose of acquisition of the land under the Land Acquisition Act, so many things are required to be considered by the authority under the Land Acquisition Act, i.e. Collector and/or Special Land Acquisition Officer such as the need of the authority, how much land is required, and the financial budgetary provision with regard to acquisition of the land for the purpose of payment of compensation to the owners and also the project. Therefore it is contemplated in the 2nd part of sub-section (2) of Section 20 that the "authority concerned" is required to take steps for commencement for its acquisition. Therefore if the proceedings are not commenced under the Land Acquisition Act within 10 years, the owner has a right to serve a notice and after the service of the notice upon the "authority concerned", the authority is required to take steps for commencement. So, as stated hereinabove, to commence the proceedings under the Land Acquisition Act, as contemplated in the first part of Section 20 of sub-section (2) is different than that of taking steps for commencement for its acquisition which is contemplated in the 2nd part of sub-section (2) of Section 20. In the present case, from the affidavit-in-reply filed on behalf of the GHB, it cannot be said that after the service of notice under sub-section (2) of Section 20, no steps were commenced for its acquisition. In fact, from the affidavit-in-reply and Sur-Rejoinder, it is clear that the GHB has taken steps by providing material and approaching the Collector for the purpose of acquisition of the land in question. There is a correspondence between the GHB and the Collector/Special Land Acquisition Officer for the purpose of commencement of the proceedings under the Land Acquisition Act, i.e., for the purpose of issuance of notification under Section 4 of the Land Acquisition Act. Under the circumstances, so far as the GHB is concerned, the designation/reservation in favour of GHB in the development plan is not lapsed as contended on behalf of the petitioners.
21. So far as Special Civil Applications No. 17409/2003, 17416/2003 and 17420/2003 are concerned, the petitioners therein have relied upon and based their case on the basis of the notices issued by them upon the respondent No.2 VUDA only. It is not the case of the petitioners in the Special Civil Applications that they have served any notice upon the GHB. As stated above, under sub-section (2) of Section, notices are required to be served upon the authority concerned, and "authority concerned" means "Gujarat Housing Board", as it is the Gujarat Housing Board which is required to take steps for commencement of acquisition of the land under the Land Acquisition Act and not VUDA. Therefore the notice served upon VUDA will not be sufficient for the purpose of attracting the provisions of sub-section (2) of Section 20 of the Act and therefore on serving the notice upon the VUDA, Area Development Authority only, the designation/reservation in favour of GHB will not lapse, and on this ground also the aforesaid Special Civil Applications fail.
21.1. It seems that, during the course of arguments, it was realised by the petitioners that they are likely to be failed for getting the designation lapsed as the notices were served by the petitioners upon VUDA and not upon GHB. In the affidavit-in-rejoinder the petitioners have come out with a case that the predecessor-in-title of the petitioners have served a notice upon the GHB in Special Civil Application No. 17410 of 2003 and 17420 of 2003 and therefore it was argued on behalf of the petitioners of those Special Civil Applications that even in the aforesaid two cases as the notices were served upon the GHB by the predecessor-in-title of the petitioners the designation would be lapsed. The said argument is required to be rejected outright, firstly the case of the petitioners in the Special Civil Application is upon notice issued by the petitioners under sub-section (2) of Section 20 upon the VUDA which is at Annexure 'D' to the petition. The petitioners cannot be permitted to improve their case by affidavit-in-rejoinder. Even considering the fact that assuming that one Vrajlal D. Patel has served a notice in the year 1995-96 upon the GHB, it is not shown what interest Vrajlal D. Patel had in the land in question. The affidavit-in-reply filed on behalf of the petitioners shows that even the petitioners were not sure with regard to the title of the land held by Vrajlal D. Patel as the petitioners have not purchased the land from said Vrajlal D. Patel, but it is the case of the petitioners that the petitioners have purchased the land from one Vasantlal Jhaverdas Shah and he might have purchased the land from Vrajlal D. Patel. So, the petitioners are also not sure whether Vrajlal D. Patel was the owner of the land in question or not. Even considering the notice served by the said Vrajlal D. Patel, it seems that the same is addressed to the Superintending Engineer, GHB, Vadodara. As per Section 112 of the Act all documents including the notices and orders required by the Town Planning Act or by any Rule or Regulation made thereunder to be served upon any person shall be deemed to be duly served whether document is to be served on a Government Department, Railway, Local Authority, Statutory Authority, Company, Corporation, Society or other Body, if the document is addressed to the Head of the Government Department, General Manager of the Railway, Secretary or Principal Officer of the Local Authority, Statutory Authority, Company, Corporation, Society or other Body at its Principal or Branch Officer or the Local or Registrar Office as the case may be and has either sent by registered post to such office or delivered at such office. Thus, what is contemplated under Section 112 of the Act is to address a notice to the Head of the authority and to be served at its Principal or Branch Officer. In the case of Gujarat Housing Board, Housing Commissioner of the GHB is Head of the Department. So, the notice was required to be addressed to Housing Commissioner. Under the circumstances it cannot be said that there is a valid notice served upon the GHB as required under Section 112 of the Act. Thus, assuming that Vrajlal D. Patel had served a notice upon the GHB, it cannot be said to be a valid notice served upon the GHB warranting lapsing of the designation/reservation which was in favour of the GHB. Though as stated hereinabove notice was allegedly issued by Vrajlal D. Patel the same cannot be considered for the purpose of determination of the present Special Civil Application as it was not the case of the petitioner in the Special Civil Application and the case of the petitioner was not based upon the notice issued by the said Vrajlal D. Patel.
22. So far as the reliance placed by SHri Pahwa on the judgment of the Hon'ble Supreme Court of India in the case of Palitana Sugar Mills Ltd., reported in (2003) 2 SCC Page 111 is concerned, the same will not be helpful to the petitioners in the facts and circumstances of the case. In the case before the Hon'ble Supreme Court of India, the question with regard to service of notice only upon the Area Development Authority and not serving notice upon the "authority concerned" for whose purpose the land in question is reserved, has not arisen. Even in the aforesaid judgment, the question with regard to commencement of the proceedings under the Land Acquisition Act and taking steps for commencement for its acquisition has also not arisen and that was not the question before the Hon'ble Supreme Court. The Hon'ble Supreme Court of India had no occasion to consider the aforesaid two aspects and that was not the issue before the Hon'ble Supreme Court of India also.
23. Shri Pahwa, the learned advocate appearing on behalf of the petitioners had submitted that issuance of the notification under Section 4 can be said to be commencement of the proceedings under the Land Acquisition Act and taking steps for commencement for its acquisition. The provisions and the scheme of the Land Acquisition Act even before issuance of notification under Section 4 of the Land Acquisition Act, so many other things are required to be considered by the authority under the Land Acquisition Act in consultation with the authority for whose purpose the land is acquired such as project, requirement of the land, budgetary provision with regard to payment of compensation and the scheme and only thereafter the notification under Section 4 of the Act can be issued. Thus, the moment the "authority concerned" approaches the authority under the Land Acquisition Act even for the purpose of issuance of the notification under Section 4, it can be said to be 'taking of steps for commencement for its acquisition'. Therefore, assuming that the commencement of proceedings under the Land Acquisition Act can be said to have taken place on issuance of the notification under Section 4 of the Land Acquisition Act, then also considering the fact that in the 2nd part of sub-section (2) of Section 20, after receipt of the notice under first part of sub-section (2) of Section 20, what was required by the "authority concerned" was to take steps for commencement for its acquisition, i.e. to take steps for requesting the authority under the Land Acquisition Act to commence proceedings for tis acquisition (i.e. it can be said to be notification under Section 4). In that case, the reservation will not get lapsed. In the present case, as stated above from the affidavit-in-reply and the Sur-Rejoinder in fact the GHB has approached the Collector for the purpose of commencement of the acquisition proceedings and there is a correspondence between the GHB and the Collector also. So, it cannot be said that no steps are taken for commencement for its acquisition as contemplated in second part of sub-section (2) of Section 20. Therefore, on this ground also, the designation/reservation in favour of the Gujarat Housing Board is not lapsed.
24. So far as the Special Civil Applications No. 17410 of 2003, 17418/2003 and 17422 of 2003 are concerned, in all the aforesaid three cases the lands in question are designated and reserved for GSCB. It is the case of the petitioners that they have served a notice upon the respondent No.2 VUDA under sub-section (2) of Section 20. However, as stated hereinabove, the notice under sub-section (2) of Section 20 was required to be served upon the "authority concerned", i.e. Gujarat Slum Clearance Board in the present case and the notice served upon the VUDA would not be sufficient for the purpose of attracting lapsing of the designation/reservation in favour of the GSCB, as it cannot be said that serving of a notice upon the VUDA would be sufficient for the purpose of notice as contemplated under sub-section (2) of Section 20. Under the circumstances, as no notice was served upon the GSCB under sub-section (2) of Section 20, the reservation in favour of GSCB is not lapsed and the aforesaid Special Civil Applications fail and are required to be dismissed in view of the following conclusions;
FINAL CONCLUSIONS:-
(i) For the purpose of sub-section (2) of Section 20 of the Gujarat Town Planning & Urban Development Act, 1976, notice is required to be served upon the authority for whose purpose the land is designated/reserved and if the notice is not served upon the "authority concerned", i.e., the authority for whose purpose the land is designated/reserved, then the designation of the land shall not lapse;
(ii) If within six months from the date of service of notice under sub-section (2) of Section 20 requiring the appropriate authority or the "authority concerned" for whose purpose the land is designated/reserved if the steps are commenced for its acquisition (and not the commencement of proceedings under the Land Acquisition Act, 1894) then in that case also the designation of the land will not lapse;
(iii) If the notice under sub-section (2) of Section 20 of the Act is addressed and/or served upon the authority other than those authorities mentioned in Section 112 of the Act, then also it cannot be said that there is sufficient compliance and therefore the designation of the land shall not lapse.
25. Before parting with the judgment it is necessary to observe that considering the fact that the land is designated for Gujarat Housing Board/Gujarat Slum Clearance Board in the final development plan which came into force in the year 1984 and still the lands in question are not used by the GHB/GSCB, the owner of the property is entitled to enjoy the property in any manner he likes subject to reasonable restrictions which may be imposed by the Legislature. A citizen is not supposed to wait for an indefinite period and/or for unreasonable period. However, one another aspect is also required to be considered, and that is 'public interest'. So, one has to strike a balance between 'public interest' and 'private interest'. In the present case, the lands in question are reserved for GHB/GSCB in the final development plan. Under the Statute, Gujarat Housing Board and Gujarat Slum Clearance Board are the bodies constituted for the purpose of undertaking construction of residential units either for the weaker sections of the society or for middle class families at a cheaper price and i.e. in public interest. Under the circumstances, while striking a balance between 'public interest' and 'private interest', if following directions are issued, it will meet the ends of justice;
(i) It will be open for the respondent No.3 Gujarat Housing Board/Gujarat Slum Clearance Board, as the case may be, to acquire the subject lands and to pay the amount of compensation as per the settled propositions of law, either by agreement or by negotiations or by settlement with the party or by pursuing process of law (Land Acquisition Act), within a period of 12 months, by way of an additional opportunity for accomplishing the object for which, earlier, the land was reserved/designated;
(ii) In the event of non-fulfillment and non-implementation of the directions hereinabove given within the time frame, the result, ipso facto, would be that the reservation of the subject land(reserved land) shall stand lapsed and/or reservation of the land shall stand released.
26. Subject to the above direction and observations, all the aforesaid Special Civil Applications fail. It is declared that the designation/reservation of the land in question is not lapsed under sub-section (2) of Section 20 of the Gujarat Town Planning & Urban Development Act. Rule is discharged in each of the matters with no order as to costs.