Manek Culture Centre vs State Of Gujarat on 31 January, 2020

[Cites 71, Cited by 9]

Gujarat High Court

Manek Culture Centre vs State Of Gujarat on 31 January, 2020

Equivalent citations: AIRONLINE 2020 GUJ 107

Bench: Vipul M. Pancholi

       C/SCA/17873/2018                                 CAV JUDGMENT




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO.        17873 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

==========================================================

1     Whether Reporters of Local Papers may be                     Yes
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?                      Yes

3     Whether their Lordships wish to see the                      No
      fair copy of the judgment ?

4     Whether this case involves a substantial                     No
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

==========================================================
                   MANEK CULTURE CENTRE & 7 other(s)
                                 Versus
                     STATE OF GUJARAT & 6 other(s)
==========================================================
Appearance:
MR R R MARSHALL, SENIOR ADVOCATE WITH MR MRUGEN K
PUROHIT(1224) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR K M ANTANI, AGP for the Respondent(s) No. 1,2,3
MR HS MUNSHAW(495) for the Respondent(s) No. 4,6
MR MITUL K SHELAT(2419) for the Respondent(s) No. 7
MR NILESH A PANDYA(549) for the Respondent(s) No. 5
==========================================================

    CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

                           Date : 31/01/2020

                             CAV JUDGMENT

1. This petition is filed under Article 226 of the Constitution of India in which the Page 1 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT petitioners have prayed for the following relief/s:

"(A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or an appropriate writ, order or direction to hold that designation/reservation of the subplot No.3 to 10 of Revenue Survey No.1, Tikka No.C9/1, situated at Taluka Vadodara as stated in para no.4.1 of petition, District Vadodara lapsed in view of the provisions contained in Section 20(2) of the Gujarat Town Planning and Urban Development Act, 1976;

(B) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or an appropriate writ, order or direction to hold that the petitioners are entitled to develop the land mentioned in the chart above situated at Revenue Survey No.1, Tikka No.C9/1, Taluka Vadodara, District Vadodara, in accordance with law, subject to, however petitioners applying for and authorities granting development permission in accordance with the provisions of the Gujarat Town Planning and Urban Development Act, 1976;

(C) This Hon'ble Court may be pleased to issu a writ of mandamus and/or a writ in the nature of mandamus and/or an appropriate writ, order or direction to permanently restrain the respondent authorities in placing the land of the petitioners under any reservation/designation in any development plan;

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(D) Pending the admission, hearing and final disposal of this petition, this Honourable Court may be pleased to permanently restrain the respondent authorities from creating any obstructions from developing the land in question in accordance with the provisions of GDCR;

(E) Any other and further relief or reliefs to which this Hon'ble Court deemed fit in the interest of justice, may kindly be granted;"

2. As this Court has issued notice for final disposal, learned advocates appearing for the parties jointly requested that this petition be disposed of finally at admission stage. Hence, Rule. Learned Assistant Government Pleader Mr. K. M. Antani waives service of notice of Rule for respondent Nos. 1 to 3, learned advocate Mr. H.S.Munshaw waives service of notice of Rule for respondent Nos. 4 and 6, learned advocate Mr. Nilesh A. Pandya waives service of notice of Rule for respondent No.5 and learned advocate Mr. Mitul K. Shelat waives service of notice of Rule for respondent No.7.

3. The factual matrix of the present case is as under:

3.1. It is the case of the petitioners that they are the owners and occupiers of the land bearing subplot Nos.3 to 10 of Revenue Survey No.1, Page 3 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT Tikka No.C.9/1, situated at Taluka Vadodara, District Vadodara. It is stated that name of partnership firm is also mutated vide entry No.1842 and thereby partnership firm of the petitioners became owner and occupier of the subject land. It is stated that measurement through DILR was also carried out on site and as per the share of the firm, proper demarcation has been made on the site of the subject land.

3.2. It is stated that Draft Development Plan in respect of the subject land was initially prepared under the provisions of the Bombay Town Planning Act, 1954 (Bombay Act) which was published in the Government Gazette on 29.01.1967 and after making necessary modifications in the Draft Development Plan submitted by Vadodara Municipal Corporation, the competent authority sanctioned the said development plan and thereafter notification was published in the Gazette on 13.03.1969. Thereafter, on 21.09.1970, the Draft Development Plan under the Bombay Act was sanctioned.

3.3. It is also submitted that the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as 'the Act of 1976') was enacted in June 1976 which has come into force w.e.f. 01.02.1978. The subject land Page 4 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT designated in the residential zone in the sanctioned development plan of Vadodara was released from the said residential use and the subject land was reserved for open space.

Thereafter, Vadodara Urban Development Authority (VUDA) came to be constituted, which had prepared Draft Development Plan for the development of Vadodara and it was published in the Government Gazette on 17.05.1979. Under the said plan, the subject land was also designated for open space. It is stated that while preparing the Draft Development Plan, objections and suggestions were invited which were considered and thereafter there was proposed modification which was published in the Government Gazette on 27.01.1983. After considering the objections and suggestions, notification dated 22.12.1983 was published in the Government Gazette. The Draft Development Plan was sanctioned subject to modifications. It is stated that under the final development plan, subject lands were designated for various purposes such as open space, sports stadium, bus terminal 1 and 2 and university. Thus, the subject lands continued to be reserved/designated w.e.f. 25.01.1984. The period of 10 years was over on 24.01.1994. Thereafter, on 26.11.1996, first revised development plan was published. In the said revised development plan, the subject lands were reserved for bus terminal Page 5 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT and M.S. University. The period of 10 years was over on 24.11.2006.

3.4. At this stage, it is required to be noted that after the period of 10 years was over on 26.11.1996, the predecessor of the petitioners issued notice under Section 20(2) of the Act of 1976 to the concerned authority on 10.08.2001. Thereafter, another notice was issued on 17.10.2001 which was duly served to VUDA.

3.5. It is also stated that the petitioners purchased the subject lands by registered document dated 28.03.2002 registered with office of Sub Registrar, Vadodara and thereby the petitioners became the owner and occupier of the subject land. The petitioners, thereafter, again issued notice dated 22.05.2002 to the respondent authority. However, no steps have been taken by the respondent authorities for acquisition of the subject land.

3.6. It is also stated that so far as first revised development plan which came into force on 26.11.1996 is concerned, period of 10 years was over on 24.11.2006. Petitioners, therefore, once again issued notice dated 22.01.2007 under the provisions of Section 20(2) of the Act of 1976 and thereby petitioners called upon the concerned Page 6 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT respondent authority to initiate the process of acquisition of the subject lands, otherwise, the reservation would be lapsed as per the provisions contained under Section 20(2) of the Act of 1976.

3.7. It is the case of the petitioners that in respect of plot No.11 of Revenue Survey No.1, Tikka C9/1, one of the petitioners' firm viz. Vrundavan Party Plot filed Special Civil Application No.13731 of 2005 before this Court. The said petition was dismissed by the learned Single Judge and therefore the said petitioner filed Letters Patent Appeal No.112 of 2009 before the Division Bench of this Court. It is stated that the Division Bench of this Court allowed the said appeal vide order dated 25.03.2014. Against the said order, the respondent - State and another filed Special Leave Petition before the Hon'ble Supreme Court. However, the Hon'ble Supreme Court dismissed the said SLP vide order dated 23.03.2018 and thereafter present petition is filed by the petitioners immediately in the year 2018.

4. Learned Senior Counsel Mr. R. R. Marshall assisted by learned advocate Mr. Mrugen Purohit for the petitioners has raised the following main contentions:

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4.1. That the subject lands are kept under reservation for different purposes since 1970 and the subject lands were reserved for open space, bus terminal and M.S. University in the development plan which was issued under the Act of 1976 on 25.01.1984. It is submitted that on 24.01.1994, period of 10 years was over and thereafter on 26.11.1996 first revised development plan was published. It is submitted that the predecessor of the petitioners issued notice under Section 20(2) of the Act of 1976 on 10.08.2001 and 17.10.2001. Thereafter, the petitioners issued notice under Section 20(2) of the Act of 1976 on 25.05.2002 and 10.01.2003. The said notices were duly served to the respondent authority. However, no steps are taken by the respondent authorities for the acquisition of the subject land. At this stage, learned counsel has referred the provisions contained in Section 20(2) of the Act of 1976 and thereafter contended that in view of the provisions contained in the said sub section, the reservation on the subject land is deemed to have been lapsed and the subject land is deemed to have been released from the reservation.

4.2. At this stage, it is also pointed out that on 26.11.1996, first revised development plan was published and period of 10 years was over on Page 8 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT 24.11.2006. Petitioners, therefore, once again issued notice to the concerned respondent authority on 22.01.2007. However, no steps are taken by the respondent authorities for acquisition of the subject land. It is, therefore, contended that the respondent authorities ought to have released the subject land from the reservation. Learned Senior Counsel has placed reliance upon the following decisions in support of his contention:

(1) In Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors., reported in AIR 2003 SC 511;

(2) In Godrej & Boyce Manufacturing Co. Ltd.

v. State of Maharashtra, reported in 2015(1) Scale 578;

(3) In Prabhaben Harshadray Desai & Ors., v.

State Government & Ors., reported in 2008(3) GLH 120;

(4) In Vimlaben Somabhai & Ors., v. Vadodara Urban Development Authority & Ors, reported in 2002(3) GLH 305;

(5) In Ramdas Patel v. Ahmedabad Municipal Corporation, reported in 1999(1) GCD 583;

(6) In Smt. Madhuriben Amrutlal Parikh & Ors.

v. the Municipal Corporation of City of Ahmedabad & Ors., reported in 1995(2) GLH 83;

(7) In Shrirampur Municipal Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher & Ors, reported in AIR 2013 SC 3757;

(8) In Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association & Ors., reported in AIR 1988 SC 233;

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(9) In Chhabildas v. State of Maharashtra & Ors., reported in 2018(2) SCC 784; (10) In the case of Gujarat Housing Board v.

State of Gujarat rendered in LPA No.476 of 2018;

(11) In the case of Patel Vijaykumar Gopalbhai v. Mamlatdar Shri rendered in Special Civil Application No.29001 of 2007; (12) In the case of Taraben Chandulal Prajapati v. Baroda Municipal Corporation rendered in Special Civil Application No.7855 of 2001.

4.3. The right of property is now considered to be not only a constitutional right but also a human right and therefore when respondent authorities have kept the subject land under reservation since 1970 and petitioners have not been permitted to use and develop the subject land and therefore the respondent authorities have violated the constitutional as well as human rights of the petitioners. Learned Senior Advocate has placed reliance upon the following decisions:

(1) In Chairman, Indore Vikas Pradhikaran v.

Pure Industrial Coke and Chemicals Ltd., reported in 2007(8) SCC 705;

(2) In P.T.Munichikkanna Reddy & Ors. v.

Revamma & Ors., reported in (2007) 6 SCC 59;

(3) In Bharat Petroleum Corporation Ltd. v.

Maddula Ratnavalli & Ors., reported in (2007) 6 SCC 81;

(4) In Chandigarh Housing Board v. Major General Devinder Singh & Anr., reported in 2007 (9) SCC 67;

(5) In C.K.Prahalada & Ors., v. State of Page 10 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT Karnataka & Ors., reported in (2008) 15 SCC 577;

(6) In State of Gujarat through Secretary v.

Hariben Meghajibhai Jasoliya rendered in Letters Patent Appeal No.1244 of 2015.

4.4. There is no delay in filing the petition as stated by the respondents in their affidavitin reply. It is submitted that the predecessor in title has issued notice in respect of the subject lands and for some portion of land, Special Civil Application No.13731 of 2005 has been filed. The said petition was dismissed by the learned Single Judge. Therefore, Letters Patent Appeal No.112 of 2009 was filed and the said appeal was decided on 25.03.2014 in favour of one of the petitioners. Thereafter, the State Government filed SLP before the Hon'ble Supreme Court which came to be dismissed by the Hon'ble Supreme Court on 23.03.2018. Petitioners have thereafter immediately filed the present petition. Thus, there is no delay in filing the petition as alleged by the respondents. At this stage, it is also submitted that even after the receipt of the notice by the concerned respondent, none of the respondent authorities has initiated the process of acquisition of the subject land. Even after filing of the present petition, since last one year, though the respondent authorities have notice about the pendency of the present Page 11 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT petition, they have not initiated the process of acquisition of the subject land. Thus, looking to the provisions of the Act of 1976 and in the facts of the present case, it cannot be said that there is a delay in filing the present petition.

4.5. The right accrued in favour of the land owners or persons interested in the land by virtue of Section 20(2) of the Act of 1976 does not curtail or take away by keeping the land under rereservation in the revised development plan. Once the deeming fiction for lapse of the reservation is applicable, it would not adversely affect even if the land is rereserved under Section 21 of the Act of 1976. Thus, it is not necessary for the petitioners to challenge the notification or development plan of 2012.

4.6. The notice under the provisions of Section 20(2) of the Act of 1976 is to be given by the owner or any person interested in the land. Petitioners are the owner and occupier of the subject land. Learned counsel has referred the property card, revenue record, city survey record of the subject land which are placed on record. Thus, when the petitioners are the owners and occupiers of the subject land and when they have already issued notice under Section 20(2) of the Act of 1976, it can be said that the petitioners Page 12 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT have rightly issued notice to the concerned authorities as per the provisions of the Act. At this stage, it is pointed out that the respondent authorities have admitted the ownership of the land of the petitioners' firm in Letters Patent Appeal No.112 of 2009 as well as in SLP filed before the Hon'ble Supreme Court. It is also pointed out that some of the portion of the subject land of the petitioners is acquired by Vadodara Municipal Corporation and various land reference cases are pending before the concerned District Court for enhancement of the compensation. Thus, the petitioners are the owners of the subject land.

4.7. In the present petition, common questions of law and facts are involved and there is no difference except the parcels of land. The notices which were issued under section 20(2) of the Act of 1976 were common, cause of action is same and the court fees of individual petitioner are paid and therefore this petition filed by the owners is maintainable.

5. Submissions canvassed by learned Assistant Government Pleader Mr. K.M.Antani appearing for the respondent - State.

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5.1. Learned Assistant Government Pleader Mr. Antani mainly contended that the decisions upon which the reliance is placed by learned Senior Advocate Mr. Marshall for the petitioners would not render any assistance to the petitioners. It is submitted that notice as contemplated under Section 20(2) of the Act of 1976 is condition precedent for applying the deeming fiction. If the notice is not duly served, it cannot be said to be a valid notice. Thus, in the present case, when the notice issued by the petitioners is not duly served to the concerned respondent authority, it cannot be treated as valid notice and therefore this Court may not entertain the present petition.

5.2. Learned Assistant Government Pleader has placed reliance upon the following decisions in support of his contention:

(1) In State of Uttar Pradesh v. Hari Ram, reported in (2013) 4 SCC 280;

(2) In Mancheri Puthusseri Ahmed & Ors., v.

Kuthiravattam Estate Receiver, reported in (1996) 6 SCC 185;

(3) In Municipal Corporation of Grater Bombay v. Dr. Hakimwadi Tenants Association & Ors., reported in AIR 1988 SC 233.

5.3. Learned Assistant Government Pleader next contended that there is delay in filing the Page 14 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT petition and therefore this petition may not be entertained.

6. Submissions canvassed by learned advocate Mr. Munshaw appearing for respondent No.4 - Vadodara Urban Development Authority.

6.1. Learned advocate Mr. Munshaw for the respondent No.4 has referred the averments made in the affidavitinreply filed on behalf of respondent No.4 and submitted that the second revised development plan was issued by the notification dated 18.01.2012 as per the provisions of Section 17(1)(c) of the Act of 1976. The said second revised development plan is in force for a period of 10 years from 2012 and therefore this petition is not maintainable.

6.2. It is further submitted that the subject lands are reserved for M. S. University, Gujarat State Road Transport Corporation as well as Vadodara Municipal Corporation and when the subject lands are reserved for public purpose, this Court may not entertain this petition.

7. Submissions canvassed by learned advocate Mr. Nilesh Pandya appearing for respondent No.5 - Vadodara Municipal Corporation.

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7.1. Learned advocate Mr. Pandya has referred the affidavitinreply filed on behalf of respondent No.5 and thereafter contended that in the city of Vadodara Vibhag3, Tikka 5, City Survey No.1, property of Maharaja Sayajirao Gaekwad is situated. The respondent Corporation had acquired land admeasuring 55796.42 sq. meters and paid compensation to the concerned owners. On the southern side of the said property, another land admeasuring 39558 sq. meters is also acquired by the respondent Corporation and compensation is also paid to the concerned owners. Land Reference Cases which are filed seeking enhancement of the compensation are pending before the concerned Civil Court. The respondent Corporation has proposed the Town Planning Scheme which is pending before the Chief Town Planner, Gandhinagar for consideration. The proposal was sent on 01.10.2016. Thus, when the respondent Corporation has already sent proposal in the year 2016 and the same is pending before the Government, present petition is not maintainable.

7.2. There is delay in filing the present petition as some of the petitioners also filed petition being Special Civil Application No.13731 of 2005 before this Court. However, the present petition is filed in November 2018.

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7.3. Notice under section 20(2)of the Act of 1976 has not been issued to Vadodara Municipal Corporation which is interested party as some of the parcels of subject land have been reserved for Vadodara Municipal Corporation. Thus, when the notice under Section 20(2) of the Act of 1976 is not issued to the respondent Corporation, petition is not maintainable. In support of his submission, learned advocate has placed reliance upon the decision rendered in the case of Deepakbhai J. Shah v. State of Gujarat & Ors., reported in 2005(1) GLR 373.

7.4. Even assuming that the reservation of the subject lands under Section 20(2) of the Act of 1976 is lapsed, even then the respondent Corporation has right to introduce the Town Planning Scheme under Section 40(3) read with Section 41(1) of the Act of 1976. Learned advocate has placed reliance upon the decision rendered in the case of Pravinbhai Muljibhai Patel representing the estate of Late Muljibhai Shamjibhai Patel & Anr. v. State of Gujarat & Ors., reported in 2015(2) GLR 1044.

7.5. The second revised development plan came into force on 10.12.2012 and period of 10 years is not over. Hence, the present petition is premature Page 17 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT and therefore this Court may not entertain the present petition.

8. Submissions canvassed by learned advocate Mr. Munshaw appearing for respondent No.6 - Gujarat State Road Transport Corporation.

8.1. That the subject lands are reserved for GSRTC to enable it to use the same for public purpose by way of putting a bus terminal. It is submitted that Vadodara Urban Development Authority has followed the procedure prescribed under the Act of 1976 while preparing and publishing development plans. The second revised development plan was sanction on 18.01.2012 and period of 10 years is not over. Hence, present petition is premature. Therefore, this petition be dismissed.

8.2. The GSRTC has addressed a proposal on 06.01.2019 to the District Collector, Vadodara indicating its requirement of the land and requested for further action. It is, therefore, urged that when the subject lands are required for setup of bus terminal by the respondent No.6, this petition may not be entertained.

9. Submissions canvassed by learned advocate Mr. Mitul K. Shelat appearing for respondent Page 18 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT No.7.

9.1. Learned advocate Mr. Shelat has mainly contended that the petitioners have failed to produce the relevant document at an appropriate time by which they have acquired interest in the subject lands though the petitioners have asserted that they shall produce the instrument as and when required. Therefore, an adverse inference is required to be drawn against the petitioners.

9.2. That the submission of the instrument at the end of the hearing cannot be countenanced. Moreover, a bare perusal of the document indicates that it is not a conveyance deed whereby the rights in the subject lands have been acquired on payment of consideration. In fact the document is a partnership deed. In terms of the deed, the owner of the subject land has agreed to become a partner of the partnership firm. Moreover, the document of title is registered on payment of stamp duty of Rs.5000/. This Court may, therefore, proceed in accordance with Section 33 and 34 of the Bombay Stamp Act.

9.3. It is further contended that with regard to the nature of document, there is no distinct right from that of the predecessor in title as Page 19 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT has been stated in the petition. In fact the predecessor in title and the petitioner would be coowners. This material fact has not been stated in the petition.

9.4. The present petition is not maintainable in law as each of the petitioners has no jural relationship qua the copetitioners and has an independent claim. In support of his submission, learned advocate has placed reliance upon the decision rendered in the case of Mota Singh & Ors. v. State of Haryana & Ors., reported in 1980 (Suppl.) SCC 600.

9.5. The petitioners have acceded to the notification dated 18.01.2012 and since the petitioners have not challenged the said notification, they cannot claim any relief which would directly or indirectly affect the consequences pursuant to the said notification. Every order in relation to which relief is sought or which would be affected by the grant of any relief has to be challenged. In support of his submission, learned advocate has placed reliance upon the following decisions:

(1) In Pune Municipal Corpn. v. State of Maharashtra & Ors., reported in (2007) 5 SCC 211;

(2) In Anita International v. Tungabadra Sugar Works Mazdoor Sangh, reported in (2016) 9 Page 20 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT SCC 44.

9.6. It is further contended that the petition does not disclose as to which petitioner is owner of which land and to which extent. Therefore, a petition lacking in material particulars may not be entertained by this Court.

9.7. The present petition is barred by delay and laches. The present petition is filed in November 2018 seeking a declaration pursuant to a purported right claimed to have been acquired in terms of the notice dated 22.01.2007. However, the petitioners have not explained the delay of 11 years in approaching this Court. It is contended that the purported right claimed is not an absolute right. If the action is not taken within reasonable time then the right purported to have been acquired in terms of the notice dated 22.01.2007 would not be enforceable when a substantive notification has thereafter been issued on 18.01.2012 and especially when the same has not been challenged. In support of his submission, learned advocate has placed reliance upon the following decisions:

(1) In Karnataka Power Corpn. Ltd. v.

K.Thangappan & Anr., reported in (2006) 4 SCC 322;

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(2) In Haryana State Handloom & Handicrafts Corpn. Ltd. & Anr. v. Jain School Society, reported in (2003) 12 SCC 538; (3) In Municipal Council, Ahmednagar v. Shah Hyder Beig, reported in (2000) 2 SCC 48;

9.8. It is further contended that the petitioners are not right in placing reliance upon the judgment in favour of the coowner. In fact, the petitioners have conceded before this Court that the firms, though separate, the persons are the same. Moreover, the notice issued is also identical and common. The petitioners, therefore, despite being coowners, as claimed by them, consciously have not instituted any proceedings in relation to the notice. The petitioners are, therefore, required to explain the delay in filing of the petition seeking the same relief.

9.9. Learned advocate Mr. Shelat would contend that so far as the validity of the designation under the notification dated 18.01.2012 is concerned, the petition is premature as the period of 10 years is not over and the said notification is in force. If the land is not acquired during the said period, the petitioners can seek declaration. The present petition is, therefore, premature and therefore this Court may not entertain this petition.

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9.10. That the notice dated 22.01.2007 is admittedly issued only to VUDA and has not been issued upon the University. It is submitted that on a plain reading of Section 20(2), it is a condition precedent that the notice has to be issued upon the authority in whose favour the acquisition is to be undertaken. In absence of any notice to the M.S. University, the petitioners cannot claim accrual of any right as provided under Section 20(2) of the Act of 1976. The present petition seeking declaration pursuant to the said notice is, therefore, devoid of merits.

10. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that petitioners are owners and occupiers of the land bearing subplot Nos. 3 to 10 of Revenue Survey No.1, Tikka No.C9/1, situated at Taluka Vadodara, District Vadodara. Names of the petitioners' firm are mutated in the revenue record. The subject lands were purchased by the petitioners in the year 2002 from the original owners. It has also emerged that the subject lands are kept under reservation since 1967. After the Act of 1976 came into force, subject lands were designated for open space and after VUDA is constituted, Draft Development Plan was Page 23 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT published on 17.05.1979. After inviting objections and suggestions, the same was modified and the notification dated 22.12.1983 came to be published and the said Draft Development Plan with modification was sanctioned by the Government. Thus, the subject lands continued to be reserved/designated w.e.f. 25.01.1984. The period of 10 years was over on 24.01.1994. Thereafter, on 26.11.1996, first revised development plan was published. In the said revised development plan, the subject lands were reserved for bus terminal and M.S. University. The period of 10 years was over on 24.11.2006.

11. It further transpires from the record that predecessorintitle of the petitioners/original owners issued notice under Section 20(2) of the Act of 1976 to the concerned authority on 10.08.2001 and on 17.10.2001 which were duly served to respondent VUDA. It is further revealed that after the petitioners became owners and occupiers of the subject lands, once again they issued notice dated 22.05.2002 to the concerned respondent authority. Thereafter, when the period of 10 years was over on 24.11.2006, petitioners once again issued notice on 22.01.2007 under Section 20(2) of the Act of 1976. However, no steps are taken by the concerned authority for acquiring the subject lands. In this factual Page 24 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT background of the case, the contentions raised by the learned advocates appearing for the parties are required to be examined.

12. The respondents opposed this petition mainly on the following grounds:

(i) There is a delay in filing the petition;

(ii)Petitioners have not produced the documentary evidence showing that they are the owners of the subject lands;

(iii)Joint petition filed by the petitioners is not maintainable;

(iv)Revised Development Plan of 2012 is not challenged by the petitioners and the period of 10 years would be over in the year 2022 and therefore the petition is premature;

(v) Notice under Section 20(2) of the Act of 1976 has not been issued to all the respondent authorities and therefore deeming fiction would not be available to the petitioners.

13. At this stage, this Court would like to refer to the provisions contained in Section 20 of the Act of 1976, which reads as under:

"Section 20 of the Act provides as under:

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"20. Acquisition of 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 (k), clause (n) or clause (o) of subsection (2) of Section 12, may acquire the land,

(a) by an agreement, or;

(b) in lieu of any development right by granting the owner against the area of land surrendered free of cost and free from all encumbrances;

(c) under the provision of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (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 proceeding under the Land Acquisition Act, 1894 (1 of 1894) are not commenced within such period, the owner or any person interested in the land and of 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."

14. Now, for considering the aforesaid contentions raised by the learned advocates appearing for the parties, first of all, the decisions on which reliance is placed by learned advocate for the petitioners are required to be Page 26 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT kept in view.

14.1. In the case of Bhavnagar University (supra), the Hon'ble Supreme Court has observed in para 27, 32 to 35 and 38 as under:

"27. An owner of a property, subject to reasonable restrictions which may be imposed by the Legislature, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner or in other words a restriction imposed on user thereof except in the mode and manner laid down under statute would not be presumed.

xxx xxx xxx

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 well known. When a legal fiction is created, it must be given its full effect. In East Page 27 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT 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 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 Page 28 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT 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 : "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 Page 29 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT other plan, secondly, by enacting sub section (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 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."

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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.

xxx xxx xxx

38. Section 21 does not envisage that despite the fact that in terms of sub section (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."

14.2. In the case of Prabhaben Harshadray Desai (supra), this Court has observed in para 24, 25 and 30 as under:

"24. From the principles of law enunciated in the judicial pronouncements referred to hereinabove, it is evident that the legal fiction contained in Section 20(2) of the Town Planning Act will come into play on the service of a notice upon the concerned authority, requiring it to acquire the land within a Page 31 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT period of six months from the date of service of such notice and, if the land is not so acquired within the stipulated period, or no effective steps are commenced for its acquisition, the reservation upon the land shall be deemed to have lapsed. The language of Section 20(2) is crystal clear, unambiguous and leaves no manner of doubt about the intention of the Legislature in enacting this provision and creating the legal fiction. Once the stipulated period of time i.e. ten years has elapsed and the land has not been acquired for the purpose for which it is designated or reserved, the land owner or person interested in the land has a right to serve the notice upon the concerned authority to acquire the land or take effective steps for its acquisition within six months. Inspite of this,if the authority concerned does not do the needful as required by Section 20(2) of the Town Planning Act, then the land cannot be reserved in perpetuity and the land owner cannot be deprived of his right to use the land for the purpose permissible under the Town Planning Scheme. The law does not contemplate a situation where the concerned authority does not take necessary action to utilise the land for the purpose for which it was reserved and, at the same time, deprive the land owners from using it as permitted by law, after the coming into effect of the legal fiction. When the ingredients of subsection (2) of Section 20 are present and the requirement of law is met, then the reservation upon the land would automatically lapse.

25. In the present case, the coowner of the land in question, Shri Amrutlal Page 32 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT Maganlal Desai, issued notice dated 189 1995 under the provisions of Section 20(2) of the Town Planning Act, requiring the concerned authority to take steps for the acquisition of the land in question within six months. It is not the case of the respondents that this notice does not meet with the requirements of Section 20(2) of the Town Planning Act. Admittedly, the land in question has not been acquired till date and no effective steps have been commenced for its acquisition. No notice under the provisions of Section 4 of the Land Acquisition Act,1894, has been issued till date. Mere intradepartmental communication cannot be construed as a step towards acquisition of the land and, therefore, the reservation upon the land is deemed to have lapsed and the legal fiction as provided for in Section 20(2) has to be given effect to after the stipulated period of time.

30. Lastly, the question whether the petitioners can claim the benefit of the notice issued by a coowner of land can now be looked into. A contention has been raised by the learned counsel for the respondents Nos.2 and 3 that the notice dated 1891995, under the provisions of Section 20(2) of the Town Planning Act, was not issued by the petitioners but by Shri Amrutlal Maganlal Desai, who was the coowner of the land in question and, therefore, the petitioners cannot get the benefit of the said notice and the deeming fiction,as contained in Section 20(2) of the Town Planning Act cannot be given effect, as far as the land of the petitioners is concerned. If the provisions of subsection (2) of Section 20 are perused, it is evident from a Page 33 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT plain meaning thereof that the legal fiction, culminating in the deemed lapse of reservation upon the land, shall operate upon the service of a notice on the concerned authority, requiring it to acquire the land within a period of six months from the issuance thereof and if the land is not acquired within six months and no effective steps are commenced for its acquisition, the reservation upon the land shall be deemed to have lapsed. The notice under the provisions of Section 20(2) is to be given by the "owner" or "any person"

interested in the land. Admittedly, the notice dated 1891995 was given by Shri Amrutlal Maganlal Desai, one of the co owners of the land. The petitioners are also coowners of the said land and can, therefore, be said to be interested in it. The effect of reservation is upon the land and not upon the owner or person interested in the land. The coowner issued the notice regarding the very same land as also owned by the petitioners. The plain and unambiguous language of subsection (2) of Section 20 does not preclude the petitioners, who are also coowners of the land, from getting the benefit of the deemed provision. Just because the notice was issued by the co owner, cannot deprive the petitioners of the legal consequences of the same, since the land in question is the same."

14.3. In the case of Gujarat Housing Board v. State of Gujarat rendered in LPA No.476 of 2018, the Hon'ble Division Bench of this Court, after considering the decisions rendered by the Hon'ble Supreme Court as well as other Hon'ble Division Page 34 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT Bench of this Court, has observed in para 23 to 25 as under:

"23. From the aforesaid decisions rendered by the Hon'ble Supreme Court as well as Division Bench of this Court, it is clear that Sections 20 and 21 of the Act are required to be read conjunctively with Section 17 of the Act. 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 Section 20(2) of the Act are not taken away. Section 21 does not envisage that despite the fact that in terms of Section 20(2) of the Act, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. It is further clear that Section 20 does not manifest a legislative intent to curtail or take away the right acquired by the land owner under Section 20(2) of the Act of getting the land dereserved. The deeming fiction for lapsing of the reservation is not to adversely affect even if the land is rereserved under Section 21 of the Act. If the deeming fiction has already come into operation and the reservation has lapsed and the rereservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. The right so revived on account of the lapsing of the reservation under Section 20(2) of the Act would continue Page 35 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT even after the rereservation. Thus, we are of the view that issue involved in the present appeals is squarely covered by the aforesaid decisions rendered by the Hon'ble Supreme Court as well as the Division Bench of this Court.

24. The contention raised by the learned advocate Mr. Ravani appearing for the appellant Board that at the time of filing the petitions, when the petitions were premature, the learned Single Judge ought not to have allowed the amendment and ought not to have granted the relief on the basis of such an amendment in favour of the petitioners. However, the said contention is misconceived. As observed hereinabove, during the pendency of the petitions, period of 10 years was over in the year 2014. Even thereafter no steps were taken by the appellant Board for acquisition of the land in question and therefore petitioners issued statutory notice under Section 20(2) of the Act on 01.08.2016. Even after the period of six months was over, no steps were taken by the appellant - Board and therefore the amendment was moved. Learned Single Judge allowed the amendment. The said order granting amendment has attained finality and the appellant Board has not challenged the said order by filing an appeal. Thus, at this stage, it is not proper on the part of the appellant to contend that the learned Single Judge has committed an error in allowing the petitions on the ground of lapsing of the reservation.

25. Learned advocate Mr. Ravani further contended that the petitioners, who have purchased the land in question in the year 2008, cannot object for the reservation of the land in question as Page 36 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT they have not suffered any hardship. However, the said contention is also misconceived. If the provisions contained in subsection (2) of Section 20 of the Act is carefully seen, it is clear that if the land 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 proceeding under the Land Acquisition Act, 1894 (1 of 1894) are not commenced within such period, the owner or any person interested in the land can issue the notice. In the present case, the original owners suffered reservation and the petitioners are the purchasers of the land in question from the original owners and when the land in question is not acquired by the appellant within the stipulated time limit, the petitioners can also be said to be the persons interested as well as the owners who can issue the notice under Section 20(2) of the Act."

14.4. The Hon'ble Division Bench of this Court in the decision rendered in Letters Patent Appeal No.1244 of 2015 has observed in para 9 as under:

9. The attempt made to contend that the petitions could be said as infructuous on the date when the same were filed in the year 2014 because of the new draft development plan or revised draft development plan were published on 17.12.2013, in our view, cannot be accepted for two reasons; first is that the deeming fiction for lapsing of the reservation is not to adversely affect even if the land is rereserved under Section 21 of the Act and the second is Page 37 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT that if the deeming fiction has already come into operation and the reservation has lapsed and the rereservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. On the contrary, the right so revived on account of the lapsing of the reservation would continue even after the rereservation. Hence, the said contention cannot be accepted.

14.5. The Hon'ble Supreme Court in the case of Pure Industrial Coke & Chemicals (supra), observed in para 52, 53 and 55 as under:

"52. The courts should, therefore, strive to find a balance of the competing interest.

Human Right Issue :

53. The right of property is now considered to be not only a constitutional right but also a human right.

xxx xxx xxx

55. Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment etc. but now human rights have started gaining a multifacet approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. As President John Adams (17971801) put it, :

"Property is surely a right of mankind as real as liberty." Adding, "The moment the Page 38 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence"."

14.6. The Hon'ble Division Bench of this Court has considered similar issue in Letters Patent Appeal No.112 of 2009, which was filed by similarly situated petitioner, wherein the Hon'ble Division Bench of this Court has observed in para 10, 10.1, 11, 11.1, 13 and 14 as under:

"10. Learned senior advocate for the appellants submitted that, though the term used in subsection (2) of section 20 is "designated", but, as observed by the Hon'ble the Apex Court, 'reservation', 'designation' and 'reservation for public institutions' are insignificant and, therefore, any submission made on behalf of the authorities, viz. (a) Area Development Authority or (b) any other authority for the same, that the land was designated, I.e. M.S.University or G.S.R.T.C, are of no consequence and do not make any difference so far as the right of the appellants/original petitioners is concerned.

10.1 Learned senior advocate for the appellants submitted that the Hon'ble the Apex Court in the matter of Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. (supra) has very succinctly drawn a comparison between the rights arising in favour of a person under subsection (2) of section 20 and the rights of the Page 39 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT public at large and has gone to the extent of saying that interpretation of section 20(1) of the Act could not be in a manner which will render subsection (2) nugatory.

11. Learned senior advocate Mr.Shalin Mehta, appearing for G.S.R.T.C., invited the attention of the Court to the affidavit filed by one Mr.K.L.Bhoya only with a view to reiterate the dates set out in that affidavitreply and submitted that a limited submission can be made on behalf of the GSRTC that there is delay and laches and on the ground of delay and laches, the appellants/original petitioners should be nonsuited. In this connection, learned senior advocate Mr.Mehta emphatically submitted that a suit was to be filed for the same declaration which is sought for by the petitioners in the petition. Even that suit would have been dismissed on the ground of delay and, therefore, under the discretionary jurisdiction of this Court conferred by Article 226 of the Constitution of India, LPA being continuation of the same, the appellants/original petitioners should not get anything which it could not have got by filing a suit.

11.1 The Court is not impressed by the aforesaid submission of learned senior advocate Mr.Mehta for the GSRTC. GSRTC is a beneficiary public body and the matter is decided by the authorities whose action of designating/ reserving the land in favour of a public institution is under challenge and that challenge is required to be appreciated in light of the law laid down by the Hon'ble the Apex Court.

xxx xxx xxx Page 40 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT

13. Ms.Maya S.Desai, learned advocate appearing for learned advocate Mr.Pandya, who is appearing for Vadodara Urban Development Authority, is also not able to dislodge the position of law laid down by the Hon'ble the Apex Court. Therefore, this Court is of the opinion that the judgment and order passed by the learned single Judge deserves to be quashed and set aside and the relief as prayed for by the appellants/original petitioners deserves to be granted. The appeal is accordingly allowed and the judgment and order passed by the learned single Judge is hereby quashed and set aside.

Designation/reservation of land bearing subplot No.11, survey No.1, Tikka Nos.9 c, admeasuring 29035 sq. mts. Situated in Vadodara Taluka, Dist. Vadodara is declared to have lapsed in view of the provisions of clause (k) of subsection (2)of section 20 of the Act and the land is ordered to be treated as 'de reserved'.

14. Learned senior advocate for the appellants/original petitioners invited the attention of the Court to notices dated 10.8.2001 and 22.5.2002 which are well beyond the period of ten years from the first development plan having come into force, I.e. 26.01.1984, after which the first revision came into force on 26.11.1996. Despite service of notices, the authorities did not initiate any action for acquiring the land in question. What is important to note here is that the authorities did not take any action for acquisition of the land till date, which is a factor which has to be taken note of by this Court."

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15. Now, at this stage, the decisions upon which the reliance is placed by learned advocates for the respondents are also required to be kept in view.

15.1. In the case of Commissioner of Income Tax, Bombay City v. Shakuntala & Ors., reported in AIR 1966 SC 719, the Hon'ble Supreme Court has observed in para 5 and 6 as under:

"5. It is necessary now to read the relevant portion of s. 23A as it stood prior to its amendment by the Finance Act, 1955.

"23A: Power to assess individual members of certain companies.

(1) where the Incometax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any company up to the end of the sixth month after its accounts for that previous year are laid before the company in general meeting are less than sixty per cent of the assessable income of the company of that previous year, as reduced by the amount of incometax and supertax payable by the company in respect thereof he shall, unless he is satisfied that having regard to losses incurred by the company in earlier years or to the smallness of the profits made, the payment of a dividend or a larger dividend than that declared would be unreasonable, make with the previous approval of the Inspecting Assistant Commissioner an order in writing that the Page 42 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT undistributed portion of the assessable income of the company of that previous year as computed for incometax porposes and reduced by the amount of incometax and supertax payable by the company in respect thereof shall be deemed to have been distributed as dividend amongst the shareholders as at the date of the general meeting aforesaid, and thereupon the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income x x x 876 Provided further that this sub section shall not apply to any company in which the public are substantially interested or to a sub sidiary company of such a company if the whole of the share capital of' such subsidiary company is held by the parent company or by the nominees thereof."

The section in effect creates a fictional or notional dividendincome which is not in fact received by the shareholder. The notional dividend is deemed to have been distributed' as on the date on which the accounts of the previous year were laid before the. company in a general meeting. It is clear from the section that an order made under it is not in itself an order of assessment, it has to be followed by an assessment on the shareholder either under s. 23 or under s.34. Under the express terms of the section, the artificial or notional income has to be included in the total income of the shareholders for the purpose of assessing his total income. The High Court has referred to its earlier decision in S.C. Cambatta. Thee Commissioner of Income tax, Bombay(1). That decision laid down that where a Page 43 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT share, stood registered in two or more names, the registered holders treated as an association of persons must be regarded I as the ,shareholder' under s.23A and' they must be assessed accordingly. It further laid down that's. 23A did not say anything about equities or beneficial owner ship; it was a procedural section not a charging section. It created a notional incomes which was wholly artificial and did not in fact exist in the pocket of any shareholder. In a later decision in ShreeShakti Mills Ltd. v. Commissioner of,' Incometax, Bombay, City, (1948) 16 I.T.R.187: (AIR 1948 Bom 394), the same High Court held that the expression "shareholder" mentioned in S. 18(5) of the Act meant the person who was shown as a shareholder in the register of the company and it was only the shareholder of a company who was entitled to the procedure of processing permissible under Sections 16 (2) and 18(5) of the Act. This view was accepted by this Court in Howrah Trading Co., Ltd. Commissioner of Incometax, Central Calcutta, 195936 ITR 215: (AIR 1959 SC 775), where it said that no valid reason existed as to why the expression 'shareholder' as used in S. 18(5) should mean a person other than the one denoted by the same expression in the Indian Companies Act, 1913. A reference was made to the decision of the Bombay High Court in 1948 16 I.T.R.187:

(AIR 1948 Bom 394) (supra) and other decisions bearing on the subject. Similarly, we see no reason why the expression 'shareholder' in s. 23A should not have the same meaning, namely, a shareholder registered in the books of the company. It would be anomalous if the expression "shareholder' has one meaning Page 44 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT in S. 18(5) and a different meaning in s. 23A of the Act ; for that would mean that a Hindu undivided family treated as a shareholder for the purpose of s. 23A would not be entitled to the benefit of s. 18(5) of the Act.

6. The learned counsel for the appellant has urged two points in support of his contention that the expression "shareholder' in s. 23A means the person who owns the share, irrespective of the circumstance whether that person is registered in. the books of the company as a shareholder or not. His first point is that the very object of the section is to prevent avoidance of supertax by the shareholders of a company, and if the beneficial owner of the shares is a Hindu undivided family, that family will not come within the purview of s. 23A, because a Hindu undivided family as such cannot be a shareholder in a company. The argument is that the narrow interpretation put on s.23 A will defeat the very purpose of the section. The second point urged is that the principle that a (1) (1959) 36 I.T.R. 215. (2) (1948) 16 I.T.R. 187, 878 legal fiction must be carried to its logical conclusion cannot be overlooked in construing s.

23A. The legal fiction enjoined by the section is that the profits must be 'deemed to have been distributed as dividend amongst the shareholders as at the date of the general meeting". This legal fiction must be carried to its logical conclusion by holding that the dividend had been actually distributed and received by the Hindu undivided family. It is pointed out that if the same dividend were actually distributed Page 45 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT by the company, it would certainly be income in the hands of the Hindu undivided family which would be liable to pay all taxes on its income, whether actual or artificial."

15.2. In the case of Mancheri Puthusseri Ahmed & Ors.,(supra), the Hon'ble Supreme Court has observed in para 8 as under:

"8.....................Learned senior counsel in this connection submitted that words 'immediately preceding the commencement' may be given more expanded meaning as this is a beneficial provision. It is difficult to agree. In the first place the Section creates a legal fiction. Therefore, the express words of the Section have to be given their full meaning and play in order to find out whether the legal fiction contemplated by this express provision of the Statute has arisen or not in the facts of the case; Rule of construction of provisions creating legal fictions is well settled. In interpreting a provision creating a legal fiction the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created or beyond the language of the section by which it is created. It cannot also be extended by importing another fiction. In this connection we may profitably refer to two decisions of this Page 46 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT Court. In the case of Commissioner of Income Tax, Bombay City II v. Shakunatala & AIR 1966 SC 719 a threeJudge Bench of this Court speaking through S.K. Das,J., made the following pertinent observation in paragraph 8 of the Report :

"The    question   here    is    one   of
interpretation     only      and     that

interpretation must be based on the terms of the section. The fiction enacted by the Legislature must be restricted by theplain terms of the statute."

In another case reported in the same volume at page 870, namely, Commissioner of Incometax (Central), Calcutta v, Moon Mills Ltd. AIR 1966 SC 870 another three Judge Bench of this Court speaking through Subha Rao,J., observed in para 8 of the Report in connection with the provision creating such legal fictions as under :

"The fiction is an indivisible one. It cannot be enlarged by importing another fiction.. "

In the present cases fiction created by Section 4A is circumscribed by its express words. Before such a deemed tenancy can arise it must be shown by the concerned beneficiary of the said provision that he was a mortgagee in possession for a continuous period of not less than fifty years immediately preceding the commencement of the said Section. The words 'immediately preceding the commencement' must necessarily be given their ordinary and full meaning.

They necessarily point out the legislative intent that the fiction is created only for covering such type of cases where the mortgagee in possession Page 47 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT not only exists on the land as mortgagee on 1.1.1970 but, also continuously existed as such for a period backward stretching upto at least 50 years in past from 31.12.1969 which was the day immediately preceding such commencement Argument of learned senior counsel was that if the words '50 years of continuous possession as mortgagee at any time prior to the coming into force of the amending Act' are read in the Section by implication he would qualify for the benefit of Section 4A, Such a contention would have stood the test if the Section would have been worded differently namely, as follows :

"such mortgagee was in continuous possession for a period of not less than 50 years prior to the coming into force of the Amending Act."

Such words are not found in the Section. In fact learned senior counsel for the appellants wants us to read the Section after omitting the word 'immediately ', advisedly prefixed by the legislature to the word 'preceding'. Such an exercise is not permissible for the Court, We have to keep in view that as per the Section the 50 years' period is circumscribed by further requirement that such continuous period of occupation as mortgagee in possession must exist without break or any hiatus till the date of coming into force of the Act and must consist of at least 50 years continuous occupation immediately prior to the coming into force of Section 4A, as such mortgagee in possession. However beneficial may be the scope and ambit of the legal fiction created by the legislature while enacting Section 4A such fiction can arise only Page 48 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT when the express language of the Section laying down the conditions precedent for raising of such a fiction is complied with by the concerned mortgagee in possession seeking the benefit of such a deeming fiction. Such a fiction cannot be extended by the Court on analogy or by addition or deleting words not contemplated by the legislature."

15.3. In the case of Hari Ram (supra), the Hon'ble Supreme Court has observed in para 18 to 20 as under:

"18. Legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Subsection (3) of Section 10 contained two deeming provisions such as "deemed to have been acquired" and "deemed to have been vested absolutely". Let us first examine the legal consequences of a 'deeming provision'. In interpreting the provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Company Limited v. State of Rajasthan (1996) 2 SCC 449 held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands.

19. James Lords Justice in Exparte, Walton, In re, Levy (1881) 17 Chance. D. 746 speaks on deeming fiction as:

"When a statute enacts that something Page 49 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT shall be deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to".

20. In Szoma v. Secretary of State for the Department of Work and Pensions (2006) 1 All E.R. 1 (at 25), court held, it would be quite wrong to carry this fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all. The intention of a deeming provision, in laying down a hypothesis is that the hypothesis shall be carried so far as necessary to achieve the legislative purpose but no further. (see also DEG Deutsche Institutions and another v. Kosby (2001) 3 All E.R. 878."

15.4. In the case of Dr. Hakimwadi Tenants Association & Ors. (supra), the Hon'ble Supreme Court has observed in para 10 as under:

"10. Another safeguard provided is the one under s. 127 of the Act. It cannot be laid down as an abstract proposition that the period of six months would always begin to run from the date of service of notice. The Corporation is entitled to be satisfied that the purchase notice under s. 127 of the Act has been served by the owner or any person interested in the land. If there is no such notice by the owner or any person, there is no question of the reservation, allotment or designation of the land under a development plan of Page 50 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT having lapsed. It a fortiori follows that in the absence of a valid notice under s. 127, there is no question of the land becoming available to the owner for the purpose of development or otherwise. In the present case, these considerations do not arise. We must hold in agreement with the High Court that the purchase notice dated July 1, 1977 served by respondents nos. 47 was valid notice and therefore the failure of the appellant to take any steps for the acquisition of the land within the period of six months therefrom, the reservation of the land in the Development Plan for a recreation ground lapsed and consequently, the impugned notification dated April 7, 1978 under s. 6 of the Land Acquisition Act issued by the State Government must be struck down as a nullity."

15.5. In the case of Pravinbhai Muljibhai Patel (supra), this Court has observed in para 23 as under:

"23. Section 20 provides that if any land is designated in the Final Development Plan for any purpose specified in clause

(b),(d) of subsection (2) of Section 12, may acquire under the Land Acquisition Act, 1894 or under the agreement.

Subsection 2 clearly provides that if the land is not acquired by agreement within a period of ten years from the date of coming into force of the Final Development Plan or if the proceedings under the Land Acquisition Act, 1894 are not commenced within such period, the owner or any person interested in the Page 51 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT 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. It is, therefore, quite clear that subsection 2 of Section 20 of the Act would apply to the case, wherein the land is reserved for any of the purpose, which is mentioned in subsection 2 of Section 20 of the Act. In the instant case, the petitioner has mentioned in the Notice purported to have been given under Section 20(2) of the Act, that the land in question is reserved for Town Planning Scheme. In light of the aforesaid, Section 20 and so also subsection 2 of Section 20 would not apply when the plot or land is reserved in a sanctioned Town Planning Scheme."

15.6. In the case of Ahmedabad Municipal Corporation v. Ahmedabad Green Belt Khedut Mandal & Ors., reported in 2014(3) GLR 2516 (SC), the Hon'ble Supreme Court has observed in para 45 to 47 as under:

"45. Article 300A of the Constitution though creates a human right being a constitutional provision, but is not a fundamental right. Article 300A provides that no person can be deprived of his property except by authority of law. The Town Planning Act is definitely an authority of law by which a person is deprived of his property if we assume that the town planning scheme deprives a Page 52 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT person of his property, though it is not so in view of the judgments of this Court in Shantilal Mangaldas (supra) and Prakash Amichand Shah (supra).

46. So far as the question that upon lapsing of designation under the development plan under Section 20 there cannot be any reservation/designation under a town planning scheme for the same land, is to be understood reading the provisions of the Act 1976 cogently. The development plan is prepared under Chapter II and town planning scheme is made under Chapter V. Therefore, they are two different things. The development plan is a macro plan for a vast area wherein a town planning scheme is minor scheme within the town. Section 40(1) simply provides that in the making of town planning scheme the authority has to have regard to the final development of the plan, if any. Thus, the words "having regard to the development plan" in Section 40 means that town planning scheme cannot disregard or ignore the designation/reservation made in the development plan.

47. Under Section 20 of the Act, it is provided that if an acquisition does not take place by agreement or under the Act 1894, in respect of certain lands designated in the final development plan for the six purposes mentioned in sub section (2) of Section 12 within a period of 10 years from the coming into force of the final development plan, the designation of the land under these clauses shall be deemed to have lapsed. Therefore, the provision for lapsing of the designation of the land does not take it out of the purview of town planning scheme and such a provision does not Page 53 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT prevent the making of a provision in a town planning scheme for any reservation specified in Section 40(3). If the judgment of the High Court on this issue is approved, the town planning scheme would be impermissible. Thus, even after the lapse of designation of the land under Section 20, a town planning scheme will have to include the land for roads, open spaces, gardens under Section 40(3)

(e), reservation of land for accommodation to members of socially and economically backward classes of people under Clause 40(3)(j) but not for items mentioned in Section 40(3)(jj)(a) would lead to absurdity."

15.7. In the case of Deepakbhai J. Shah (supra), this Court has observed in para 20 as under:

"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 subsection (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 Page 54 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT 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 Page 55 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT 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 subsection (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 subsection (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 Page 56 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT 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 subsection (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 Page 57 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT Acquisition Act, as contemplated in the first part of Section 20 of subsection (2) is different than that of taking steps for commencement for its acquisition which is contemplated in the 2nd part of subsection (2) of Section 20. In the present case, from the affidavit inreply filed on behalf of the GHB, it cannot be said that after the service of notice under subsection (2) of Section 20, no steps were commenced for its acquisition. In fact, from the affidavit inreply and SurRejoinder, 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."

15.8. In the case of Anita International v. Tungabadra Sugar Works Mazdoor Sangh & Ors, reported in (2016) 9 SCC 44, the Hon'ble Supreme Court has observed in para 54 and 55 as under:

"54. We are also of the considered view, as held by the Court in the Krishnadevi Malchand Kamathia case8, that it is not open either to parties to a lis or to any Page 58 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT third parties, to determine at their own, that an order passed by a Court is valid or void. A party to the lis or a third party, who considers an order passed by a Court as void or non est, must approach a Court of competent jurisdiction, to have the said order set aside, on such grounds as may be available in law. However, till an order passed by a competent Court is set aside, as was also held by this Court in the Official Liquidator, Uttar Pradesh and Uttarakhand5 and the Jehal Tanti9 cases, the same would have the force of law, and any act/action carried out in violation thereof, would be liable to be set aside. We endorse the opinion expressed by this Court in the Jehal Tanti case9. In the above case, an earlier order of a Court was found to be without jurisdiction after six years. In other words, an order passed by a Court having no jurisdiction, had subsisted for six years. This Court held, that the said order could not have been violated while it subsisted. And further, that the violation of the order, before it is set aside, is liable to entail punishment, for its disobedience. For us to conclude otherwise, may have disastrous consequences. In the above situation, every cantankerous and quarrelsome litigant would be entitled to canvass, that in his wisdom, the judicial order detrimental to his interests, was void, voidable, or patently erroneous. And based on such plea, to avoid or disregard or even disobey the same. This course can never be permitted.

55. To be fair to learned counsel for the appellants, it needs to be noticed, that reliance was also placed on behalf of the Page 59 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT appellants on the Kiran Singh10, the Sadashiv Prasad Singh6, and the Jagmittar Sain Bhagat12 cases, to contend, that a decree passed by a Court without jurisdiction was a nullity, and that, its invalidity could not be corrected, even by the consent of the concerned parties. We are of the considered view, that the proposition debated and concluded in the judgments relied upon by learned counsel for the appellants (referred to above) are of no relevance, to the conclusions drawn in the foregoing paragraph. In our determination hereinabove, we have not held, that a void order can be legitimized. What we have concluded in the foregoing paragraph is, that while an order passed by a Court subsists, the same is liable to be complied with, till it is set aside."

15.9. In the case of Pune Municipal Corpn. (supra), the Hon'ble Supreme Court has observed in para 35 and 36 as under:

"35. The High Court was also wrong in referring to and relying upon Gadde Venkateswara Rao v. Government of Andhra Pradesh & Ors., AIR 1966 SC 828 and also Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar & Ors., 1999 (8) SCC 16 for the proposition that allowing a petition of the Corporation would result in reviving and restoring of illegal order. In our view, the High Court has ignored an important fact that setting aside of order by the Revisional Authority would not have resulted in restoring illegal order inasmuch as the Page 60 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT original order passed under Section 8 of the Act was not challenged by the land owners in an appeal filed in 1979. The order passed by the Competent Authority, therefore, cannot be held void, still born or purported order. On the contrary, in the said order, it was stated that the notice was properly sent at the address supplied by the declarant and the owner would have to be treated as served. In the appeal also, it was never contended by the landowners that they were not served and on that ground the order was bad. Hence, unless the said order was set aside, it could not be termed as illegal or void order.

36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states:

"The principle must be equally true even where the 'brand of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court".

He further states:

"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and Page 61 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT valid for another, and that it may be void against one person but valid against another".

15.10. In the decision rendered in Special Civil Application No.2827 of 1998, this Court has observed in para 15 as under:

"15. In the case on hand also, the petitioners were required to serve notice as provided under Section 20(2) of the Act upon respondent no.4M. S. University, therefore, the contention that the reservation in the final development plan would be deemed to have lapsed cannot be accepted. The contention raised by the petitioners to the effect that the notice to VUDA is sufficient compliance of Section 20(2) of the Act, in the facts of this case, deserves to be negatived. Even while agreeing with the contention raised by the learned counsel of the petitioners that as decided by the Hon'ble Apex Court in the case of Bhavnagar University (supra), the reservation would lapsed after ten years on the date on which the final development plan came into force, the fact remains that the requirement of serving of notice as provided under Section 20(2) is mandatory and, therefore, in absence of any notice to the concerned authority, the reservation would not automatically lapse."

15.11. In the case of Municipal Council, Ahmednagar (supra), the Hon'ble Supreme Court has Page 62 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT observed in para 14 as under:

"14. The High Court has thus misplaced the factual details and misread the same. It is now a wellsettled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction, has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle, Hence, the equitable doctrine, namely, `delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a gobye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of school playground and roads in the development plan and may reason therefore, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above."

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15.12 In the case of Haryana State Handloom & Handcrafts Corpn. Ltd.(supra), the Hon'ble Supreme Court has observed in para 10 as under:

"10. The only ground given by the High court in justifying delay is as follows:

'Mr. Gupta contends that the petition is belated. We are unable to accept the contention. The respondent is trying to take advantage of its own wrong. The petitioner had waited patiently to see if the respondent would utilize the land. When it found that nothing was being done, the petitioner has approached this Court. The petitioner cannot be accused of any delay so as to disentitle it to the relief. The delay, if any, shows the bonafides of the petitioner.' In our view, this reasoning is entirely unsustainable and erroneous. The Respondents did not need to wait 22 years to see that nothing was being done to utilize the land. The High Court was entirely in error in stating that the Respondents could not be accused of any delay and that the delay in fact showed the bonafides of the Respondents. Further, the High Court seems to have overlooked the fact that the Respondents had applied for enhancement of compensation and had filed a Writ Petition only after those proceedings were over."

15.13. In the case of Karnataka Power Corpn. Ltd. (supra), the Hon'ble Supreme Court has observed in para 6 to 8 as under:

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"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc. (1874 (5) P.C. 221 at page 239) was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329). Sir Barnes had stated:

"Now, the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him Page 65 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N. Bose v. Union of India (AIR 1970 SC 470) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay."

16. Keeping in view the aforesaid provisions of law as well as the decisions rendered by the Page 66 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT Hon'ble Supreme Court as well as by this Court, if the facts of the present case and submissions canvassed by learned advocates appearing for the parties are examined, it is revealed that the petitioners issued notice on 22.01.2007 under Section 20(2) of the Act of 1976 to the concerned respondent authority and informed to initiate the process of acquisition of the subject lands. At this stage, it is required to be noted that similarly situated person i.e. the owner of sub plot No.11 of Revenue Survey No.1, Tikka No.C 9/1, had filed a petition being Special Civil Application NO.13731 of 2005 before this Court on the basis of the notice issued under Section 20(2) of the Act of 1976. The learned Single Judge dismissed the said petition and therefore Letters Patent Appeal No.112 of 2009 came to be filed. The Hon'ble Division Bench of this Court allowed the said appeal vide order dated 25.03.2014, copy of which is placed on record at page 206 of the compilation. In the said petition, the Hon'ble Division Bench of this Court has considered similar issue raised by the present respondents including the aspect of delay, issuance of notice to only VUDA and thereafter considering various decisions rendered by the Hon'ble Supreme Court, the Hon'ble Division Bench has observed that, "GSRTC is a beneficiary public body and the matter is decided Page 67 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT by the authorities whose action of designating/reserving the land in favour of a public institution is under challenge and that challenge is required to be appreciated in light of the law laid down by the Hon'ble the Apex Court." Thus, the specific contention raised by the respondent authority with regard to the delay and laches was rejected by the Hon'ble Division Bench of this Court. The Hon'ble Division Bench lastly observed that, "the notices issued in the year 2001 and 2002 are well beyond the period of ten years from the first development plan having come into force, i.e. 26.01.1984, after which the first revision came into force on 26.11.1996. Despite service of notices, the authorities did not initiate any action for acquiring the land in question. What is important to note here is that the authorities did not take any action for acquisition of the land till date, which is a factor which has to be taken note of by this Court." At this stage, it is also required to be noted that the aforesaid decision rendered by the Hon'ble Division Bench of this Court was challenged by the respondents before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the SLP on the ground of delay as well as on merits vide order dated 23.03.2018. Copy of the order passed by the Hon'ble Supreme Court is placed on record at page 239. Thus, the aforesaid Page 68 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT decision rendered by the Hon'ble Division Bench of this Court in the case of similarly situated petitioner is binding to this Court.

17. It is also reflected from the record that after the Hon'ble Supreme Court has dismissed the SLP filed by the respondent State and others on 23.03.2018, for the subject lands, the present petitioners have immediately filed the present petition. Thus, in the facts and circumstances of the present case, it cannot be said that there is a delay in filing the petition. Even otherwise, as observed by the Hon'ble Division Bench in the aforesaid decision, despite service of notice, the authority did not initiate any action for acquiring the land in question till date and therefore the said factor is required to be taken note of by this Court. Thus, in the facts and circumstances of the present case, the decisions upon which the reliance is placed by the learned advocates appearing for the respondents would not render any assistance to them.

18. It is further required to be noted that though petitioners/firms are different, petition is filed by one of the partners of the firms. The issue involved in the present petition is same and the petitioners have stated about the subject Page 69 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT lands in the petition and necessary documents are also placed on record. It is stated that separate court fee is also paid by the petitioners at the time of filing of this petition and therefore the contention raised by learned advocate appearing for the respondents about maintainability of the petition cannot be accepted.

18.1.It is well settled that a notice under the provisions of Section 20(2) of the Act of 1976 can be given by owner or any person interested in the land. It is the specific case of the petitioners that they are the owners and occupiers of the subject land. Necessary property card, revenue record, city survey record and the other material is placed on record. Hence, when the petitioners are the owners and occupiers of the subject land and when they had issued notice under Section 20(2) of the Act of 1976, deeming provision would be applicable in the facts of the present case. It is also contended by learned advocate appearing for the petitioners that portion of the subject land of the petitioners is acquired by Vadodara Municipal Corporation and various land reference cases are pending before the concerned District Court for enhancement of the compensation. Hence, it cannot be said that petitioners are not the owners of the subject land.

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19. One of the contentions raised by the respondents is that petitioners have not challenged second revised development plan of 2012 and period of 10 years is not over and therefore the petition is premature and hence no relief can be granted to the petitioners. According to this Court, the said contention is misconceived. The Hon'ble Supreme Court in the case of Bhavnagar University (supra) has held 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. It is further held that Section 21 does not envisage that despite the fact that in terms of Section 20(2), 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 20(2) of getting the land defreezed. The Hon'ble Division Bench of this Court in Letters Patent Appeal No.476 of 2018 has also considered the said issue. Thus, this Court is of the view that it is not Page 71 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT necessary for the petitioners to challenge the second revised development plan of 2012. Further, the petitioners are claiming their right on the basis of the issuance of notice, when the period of 10 years was over in the year 2006, it cannot be said that petition is premature as the period of 10 years of second revised development plan of 2012 is not over.

20. At this stage, it is pertinent to note that in Special Civil Application No.2827 of 1998 decided by the learned Single Judge of this Court, upon which reliance is placed by the respondents, this Court has recorded similar contentions raised by the concerned respondent in para 6.2 of the said decision as under:

"6.2.It was contended that as stated in the additional affidavitinreply by respondent no.4University, there is no challenge by the petitioners to the reservation which is made in the revised final development plan sanctioned by the State Government on 18.01.2012 and the earlier notification which is challenged by the petitioners in this petition is substituted by notification dated 18.01.2012. On both these grounds, it was submitted that the petition deserves to be dismissed."

21. Thereafter, this Court has disposed of the said petition on 21.12.2015 by granting liberty Page 72 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT to the respondent University to acquire the land in question as provided under Section 20(2) of the Act of 1976 by agreement or under the provisions of the Land Acquisition Act within a period of 12 months by way of additional opportunity for the purpose for which the land was so reserved/designated in the final development plan. Thus, though period of 10 years from 18.01.2012 was not over, this Court has granted such liberty to the respondent - M.S. University. Thus, the respondents have wrongly placed reliance upon the aforesaid decision. On the contrary, the said decision would be helpful to the petitioners.

22. Even at the cost of repetition, it is required to be noted that the Hon'ble Division Bench of this Court in Letters Patent Appeal No.1244 of 2015 has, in para 9, observed that, "the attempt made to contend that the petitions could be said as infructuous on the date when the same were filed in the year 2014 because of the new draft development plan or revised draft development plan were published on 17.12.2013, in our view, cannot be accepted for two reasons; first is that the deeming fiction for lapsing of the reservation is not to adversely affect even if the land is rereserved under Section 21 of the Act and the second is that if the deeming Page 73 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT fiction has already come into operation and the reservation has lapsed and the rereservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. On the contrary, the right so revived on account of the lapsing of the reservation would continue even after the rereservation. Hence, the said contention cannot be accepted." Hence, from the aforesaid observations made by the Hon'ble Division Bench of this Court, it cannot be said that the right of the holder of the land would cease in the property.

23. Another contention is raised by one of the respondents is that town planning scheme is required to be framed with regard to the subject lands. However, it is not in dispute that till date no steps are taken for framing of the town planning scheme. Though the respondent authorities are having notice even after filing of this petition, no steps are taken for acquisition of the subject lands. Merely because some departmental communications are made, it cannot be said that town planning scheme is framed for the subject lands. This Court in the case of Prabhaben Harshadray Desai (supra) has also observed that mere intradepartmental communication cannot be construed as a step Page 74 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT towards acquisition of the land and therefore the reservation upon the land is deemed to have lapsed and the legal fiction as provided for in Section 20(2) has to be given effect to after the stipulated period of time. Therefore, merely there is some intradepartmental communication for the purpose of initiating the process of framing of town planning scheme or even for acquisition of the land, it cannot be said that the right accrued in favour of the petitioners is lapsed in the facts and circumstances of the present case. Hence, the contention raised by the respondents about Town Planning Scheme in the facts of the present case cannot be accepted.

24. Learned advocate appearing for the respondents mainly submitted that no valid notice is issued to the concerned respondent authorities for which the subject land is reserved and therefore legal fiction would not be available in favour of the petitioners. It is required to be noted that the petitioners have served notice to VUDA. Thereafter when this petition is filed, notices are issued by this Court to the respondents and therefore it can be said that the respondents are aware about the claim of the petitioners, in spite of that, since last more than one year, no steps are taken by the respondents for acquisition of the subject lands.

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At this stage, it is once again pertinent to mention that with regard to adjoining land, similar type of petition was filed by the similarly situated petitioner. In the said matter also, the notice was only given to VUDA and not to the concerned respondent authorities i.e. M.S. University and GSRTC. The Division Bench of this Court, while considering the appeal filed by the concerned appellant i.e. similarly situated person, allowed the said appeal in spite of the fact that the notice was only served to VUDA. The said order passed by the Hon'ble Division Bench was not interfered with by the Hon'ble Supreme Court and the SLP was dismissed in March, 2018. Thus, the aforesaid decision rendered by the Hon'ble Division Bench is binding to this Court and therefore the contention raised by the respondents with regard to nonservice of notice to all the respondents is required to be rejected.

25. At this stage, it is required to be noted that the reliance placed by the learned advocates appearing for the respondents on the decisions rendered by two other learned Single Judge of this Court on this issue would not render any assistance to them in the facts of the present case. Even otherwise it is required to be noted that the learned Single Judge in the decision Page 76 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT rendered in the case of Deepakbhai J. Shah (supra) though held that notice under Section 20(2) of the Act of 1976 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' then the designation of the land shall not lapse, observed in paragraph 25 as under:

"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 Page 77 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT 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 nonfulfillment and nonimplementation 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. Thus, from paragraph 25 of the said decision, it is revealed that the learned Single Judge has observed that one has to strike a balance between 'public interest' and 'private interest' and while striking balance between 'public interest' and 'private interest', the learned Single Judge observed that it will be open for the concerned respondent authority 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 Page 78 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT 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. It is also observed that in the event of nonfulfillment and non implementation of the directions given by the Court 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. Even in another decision rendered by the learned Single Judge in Special Civil Application No.2827 of 1998, though the learned Single Judge has observed that the petitioners were required to serve notice as provided under Section 20(2) of the Act to respondent M.S.University, however, thereafter, in para 19, 19.1 and 19.2, learned Single Judge has observed as under:

"19. In light of the aforesaid, therefore, following the judgment of this Court in case of Deepakbhai J. Shah (supra), while striking balance between public interest and private interest, similar directions are required to be issued.

19.1. It will be open for respondent no.4M.S. University to acquire the land in question as provided under Section 20(2) of the Act that by agreement or under the provisions of Land Acquisition Act, 1894 within a period of 12 months by Page 79 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT way of an additional opportunity for the purpose for which the land was so reserved/designated in the final development plan.

19.2. In case if the aforesaid directions are not adhere to within 12 months, the reservation of the land in question shall stand lapsed."

27. Thus, the decisions upon which the reliance is placed by learned advocate appearing for the respondents would not render any assistance to them. On the contrary, after observing that though notice under Section 20(2) of the Act is required to be served to the authority for which the land is reserved and when no such notices were served to such authorities, this Court has specifically protected the interest of the concerned petitioner by giving a chance to the concerned authority to acquire the land within stipulated time limit.

28. At this stage, it is also pertinent to note that learned Senior Counsel Mr. Marshall appearing for the petitioners, after taking instructions, specifically contended that even if the respondents are ready and willing to acquire the subject lands within a period of six months, they have no objection.

29. At this stage, the decision rendered by the Page 80 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT Hon'ble Supreme Court in the case of Pure Industrial Coke and Chemicals Ltd.,(supra) is required to be kept in view. The Hon'ble Supreme Court has observed that the right of property is now considered to be not only a constitutional right but also a human right. Thus, in the present case, when the subject lands are kept under reservation/designation since 1967 and the petitioners are not in a position to use the said lands since last number of years, it would not be proper on the part of the respondents to take technical objections. If the respondents are interested in the subject lands for public interest, it is always open for them to acquire the subject lands after following due process of law and after paying required compensation in accordance with law. However, petitioners cannot be deprived of their constitutional as well as human right.

30. In view of the foregoing discussion, the petition is allowed. The designation/reservation of subplot Nos. 3 to 10 of Revenue Survey No.1, Tikka No.C9/1, situated at Taluka Vadodara, District Vadodara, is declared to have lapsed in view of the provision contained in subsection (2) of Section 20 of the Act of 1976 and the aforesaid land is ordered to be treated as 'de reserved/released'. Rule is made absolute Page 81 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020 C/SCA/17873/2018 CAV JUDGMENT accordingly.

(VIPUL M. PANCHOLI, J) Jani Page 82 of 82 Downloaded on : Sat Feb 01 23:28:47 IST 2020

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