Gujarat High Court
Gajanan Maganlal Parikh And Ors. vs Municipal Corporation, Dana Pith And ... on 16 April, 1991
Equivalent citations: AIR1993GUJ53, AIR 1993 GUJARAT 53
Author: J.M. Panchal
Bench: J.M. Panchal
JUDGMENT Jani, J.
1. The petitioners who were originally the members of a Hindu Undivided Family and who after partition became the owners of different portions of land bearing final plots Nos. 951 and 952 of the Town Planning Scheme, Ahmedabad (Khokhra Mehmedabad Extension) No. XXV reconstituted from Survey Nos. 253/1 and 254 part of Khokhra Mehmedabad locality, have filed this petition under Article 226 of the Constitution of India for obtaining a declaration that the designation and reservation of the said plots for the purpose of respondent Municipal Corporation for housing has lapsed and that the petitioners are free to develop or deal with the said plots as per their wishes and in the alternative they have prayed for an appropriate writ directing the respondents to acquire the petitioners' lands which were reserved by the respondent Municipal Corporation in the final development plan in accordance with the provisions of the local Town Planning Act read with Land Acquisition Act, 1894 or to abide by the agreement of sale-purchase that had been reached inter se between the parties as per Municipal resolution dated 4th September 1974.
2. The following facts emerging from the record appear to be undisputed.
The respondent Ahmedabad Municipal Corporation prepared a development plan for the City of Ahmedabad in discharge of its obligation cast upon it by Section 3 of the Bombay Town Planning Act, 1954, hereinafter referred to as "the Bombay T. P. Act". The development plan was submitted to the State Government and after consulting the Consulting Surveyor the State Government sanctioned the development plan in exercise of its power conferred by Section 10 of the said Act. Annexure A to the petition is the Notification dated 21st August 1965 issued by the Government in Panchayats and Health Department sanctioning the development plan and fixing first day of October 1965 as the date on which the plan was to come into force. The said development plan inter alia provided for reservation of the petitioners' lands for the purposes of housing, and they were later on reconstituted into final plots Nos. 951 and 952.
3. The portion of the land bearing Survey No. 260 which was in the neighbourhood of the petitioners' land was also reserved for housing purposes in the said development plan. The owner of the said land and petitioner No. 1 also approached the Municipal Authorities requesting them to purchase their land by private negotiations. After some personal discussion and negotiations the administrator of the respondent Municipal Corporation agreed to purchase the petitioners' land at the rate of Rs. 20/- per sq. yd: and the part of Survey No. 260 at Rs. 10/- per sq. yd. This understanding was recorded by the first petitioner in his letter dated 30th July, 1974, and the Administrator of the Municipal Corporation confirmed the agreement. and understanding by the resolution dated 4th September 1974, which is produced at Annexure B to the petition.
4. Thereafter the Estate Officer of the respondent Municipal Corporation by his letter dated 13-10-1974, Annexure C, called upon the petitioner No. 1 to obtain permission of the Collector under Section 63 of the Bombay Tenancy and Agricultural Lands Act in view of the fact that the lands bearing Survey Nos. 352 and 254 were agricultural lands and they were to be purchased for non-agricultural purposes. The petitioner No. 1, therefore, applied to the Deputy Collector of Ahmedabad for permission to sell the land in question to the respondent Corporation for non-agricultural use, and the Deputy Collector by his order dated 5-2-1975, Annexure D, was pleased to grant requisite permission under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.
5. It is, therefore, obvious that the respondent Municipal Corporation proceeded to some extent in the direction to purchase the land by negotiation and at their request the petitioner had obtained the permission under Section 63 of the Bombay Tenancy and Agricultural Lands Act. In the meantime, however, the Urban Land (Ceiling and Regulation) Act, 1976, came into force in February 1976. It is the petitioners' allegation that on enactment of Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as "the Urban Land Act", a temptation arose in the minds of the Municipal authorities to grab the lands needed by the respondent at a throw-away price by resorting to the provisions of the Urban Land Act. So in order to come out of the obligation created by the earlier agreement and resolution dated 4-9-1974, the Standing Committee passed another resolution dated 25-8-1976, cancelling the previous resolution passed by the Administrator. It is the petitioners' case that once having reserved the petitioners' land for the purpose of housing, the respondent Corporation was under an obligation to commence the proceeding under the Land Acquisition Act, 1894, within a period of 10 years as per the provisions of the Bombay Towr. Planning Act. The grievance is also made that when the respondent Municipal Corporation had purchased the land bearing Survey No. 260 and also the adjoining lands bearing Survey Nos. 251 and 252 which had already been reserved for housing in the development plan, by agreement at the rate of Rs. 20/- per sq. yd., the respondent Corporation was not justified in adopting altogether different approach in respect of the petitioners' land. When the attention of the Municipal Commissioner was drawn to this discriminatory treatment, the Estate Officer of the respondent Corporation by letter dated 18-4-1979, Annexure G, called upon the petitioners to state the rates at which the petitioners desired to sell the land and also whether the petitioners were in a position to produce a title clearance certificate. The necessary information was furnished by the petitioners by their letter dated 20-7-1979. Having come so far, the respondent Corporation has ceased to take any further action for acquiring the land, as the provisions of the Urban Land Act had came into force. It is the petitioners' case the exercise of powers under the Town Planning Act cannot be dependent upon the provisions contained in the Urban Land Act, as these enactments are not interconnected in any manner whatsoever. The petitioners say that if the respondent Corporation did not desire to act under the Town Planning Act, but wanted to take thebenefit of the provisions contained in the Urban Land Act, it was required to take a decision to dereserve the petitioners' lands in order that the provisions of the Urban Land Act may operate. According to the petitioners, the respondent cannot blow hot and cold and cannot sit tight over the petitioners' land by adopting a double approach. The petitioners have also stated that they are required to engage a watchman for the protection of their land in order that the land may not be encroached upon by hutment dwellers, and yet they are not in a position to utilize or develop the land. Hence according to the petitioners this is a fit case in which the respondent Corporation should be directed to proceed further with the acquisition of the lands.
6. On behalf of the respondent Municipal Corporation one Shri P. S. Patel, Deputy Estate Officer, filed his reply on 11-3-1987 and Shri K. J. Shah, Estate Officer, has filed additional affidavit on 12-4-1991. It appears from these affidavits that the development plan of the City of Ahmedabad was published on 29-3-1963 and it was submitted for approval of the State Government on 14-11-1963. The plan was sanctioned by the State Government on 21-8-1965. The development plan was revised by the respondent Corporation and after considering the objection it was submitted for approval on 21-11-1975. The State Government sanctioned the revised development plan after a period of about 8 years, that is on 16-9-1983. In this revised plan final plot No. 951 was reserved for housing and final plot No. 952 was reserved for Transport Nod. In the meantime Gujarat Town Planning and Urban Development Act, 1976, came into force from 19-6-1976, and it is now referred to as the Gujarat Town Planning Act for the sake of brevity. According to the respondent Corporation the reservation continues for a period of 10 years from coming into force of the final development plan, as per the provisions of Section 11(3) of the Bombay Town Planning Act and Section 20(3) of the Gujarat Town Planning Act. In short according to the respondent Corporation, the reservation of the petitioners' land would continue up to 16-9-1993, even though it was originally reserved on 21-8-1965 when the State Government sanctioned the original development plan. It is further submitted on behalf of the respondent Corporation that according to the policy decision of the State Government, the lands covered by the Urban Land (Ceiling & Regulation) Act cannot be acquired. It is admitted that the respondent Corporation has taken steps to acquire the land by negotiations as well as by requesting the State Government to move its machinery under the provisions of the Land Acquisition Act, as required by Section 10(3) of the Bombay Town Planning Act, and it is further admitted that after passing the resolution on 22-1-1967, the Corporation has referred the proposal to the Special Land Acquisition Officer also, but no further steps were taken in this direction as the Corporation might get the same land at the price determined under the provisions of Urban Land Act. In the affidavit of Shri K. J. Shah a request is made that the petitioners should be called upon to produce a No-Objection Certificate from the Competent Authority under the Urban Land Act in order that they may be in a position to transfer the land.
7. We have heard Ms. V. P. Shah, learned Advocate appearing on behalf of petitioners, Mr. S. N. Shelat, learned Advocate appearing on behalf of respondent No. 1 Municipal. Corporation, and Mr. B. B. Desai, learned A.G.P. 'appearing on behalf of respondent No. 2 State of Gujarat on the prayers made and the relevant points involved in this petition. The following questions arise for our determination:
i) Whether a declaration can be granted to the effect that the designation and reservation of the disputed lands for the purpose of housing has lapsed?
ii) Whether the respondents can be directed to acquire the disputed lands by agreement or under the provisions of the Land Acquisition Act, 1894?
iii) Whether the respondents can sit tight over the disputed lands for an indefinite period and refuse to take any action whatsoever?
8. An examination of relevant provisions of the Bombay Town Planning Act and the Gujarat Town Planning Act as well as the judgment of the Supreme Court in respect of the relevant provisions thereof would indicate that the first question will have to be answered in the negative.
9. So far as the restriction contained in the Bombay Town Planning Act and the Gujarat Town Planning Act are concerned, the learned Advocate appearing for the respondent Municipal Corporation places reliance on the judgment of the Supreme Court in K. L. Gupta v. The Municipal Corporation of Greater Bombay, AIR 1968 SC 303. The Supreme Court has referred to the relevant provisions of the Bombay Town Planning Act in order to come to the conclusion that Sections 4, 9, 10, 11, 12 and 13 of the Bombay Town Planning Act were constitutionally valid and the powers exercisable under the sections were neither un-canalized nor arbitrary.
10. Under Section 7 of the Bombay Town Planning Act the development plan shall generally indicate the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are to be carried out and regulated, and in particular it shall inter alia contain the proposals for designating the use of land for the purpose of residential, industrial, commercial and agricultural purposes and also proposals for reservation of land for the public purposes such as parks, play-grounds, recreation grounds, open spaces, schools, markets or medical, public health or physical culture institutions. In the present case the petitioners' land were reserved for the purpose of municipal housing in the development plan. So the land can be described as designated or reserved land. Under Section 10 of the Bombay Town Planning Act, the State Government is empowered after consulting the consulting surveyor to sanction the development plan.
11. Section 11 of the Bombay Town Planning Act is material for our purpose. It reads as under:
"11. (1) The local authority may acquire any land designated in the development plan for a purpose specified in Clause (b), (c), (d) or (e) of Section 7 either by agreement or under the Land Acquisition Act, 1894.
(2) If the land is acquired under the Land Acquisition Act, 1894, the provisions of the said Act as amended by the Schedule to this Act shall apply to the determination of compensation for the acquisition of such land.
(3) If the designated land is not acquired by agreement within ten years from the date specified under Sub-section (3) of Section 10 or if proceedings under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice to the local authority and if within six months from the date of the service of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have lapsed."
Hence under Section 11 the Municipal Corporation is under obligation to acquire the land designated in the development plan, either by agreement or under the Land Acquisition Act, 1894. It is provided that if the designated land is not acquired by agreement within 10 years from the date specified for enforcement of the development plan or if the proceedings under the Land Acquisition Act are not commenced within 10 years, the owner or such person interested in the land is entitled to serve notice to the Local Authority, for proceeding further with the acquisition and if within six months from the date of service of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have lapsed.
.12. Under Section 17 of the Bombay Town Planning Act, at least once in every ten years from the date on which the last development plan came into force, the local authority may, and if so required by the State Government, after the date on which a development plan for any area has come into force, shall, carry out a fresh survey of the area within its jurisdiction with a view to revising the existing development plan and the provisions of Section 4 to 15 (both inclusive) shall, so far as they can be made applicable, apply in respect of such revision of the development plan.
13. The corresponding provisions of the Gujarat Town Planning Act which came into force in the year 1976 are Sections 12, 20 and 21. Under Section 12 of the Gujarat Town Planning Act a draft development plan has to provide, inter alia, the proposals for the reservation of land for the purposes of Union and State or Local Authority or any other authority or body established by or under any law for the time being in force and proposal for designation, the use of the land for residential, industrial, commercial or agricultural purposes.
Under Section 20 of the Gujarat Town Planning Act, the Area Development Authority or any other authority for whose purpose the land is designated in final development plan may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894. Sub-section (2) is in the following terms:
"(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 proceedings under the Land Acquisition Act, 1894 are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of the land as aforesaid shall be deemed to have lapsed."
Section 21 of the Gujarat Town Planning Act provides for revision of the development plan. It reads as under :
"At least once in ten years from the date on which a final development plan comes into force, the Area Development Authority shall revise the development plan after carrying out if necessary, a fresh survey, and the provisions of Sections 9 to 20, shall, so far as may be, apply to such revision."
14. In the case of K.L.Gupta(AIR1968 SC 303) (supra), the Hon'ble Supreme Court was concerned with the vires of certain sections of the Bombay Town Planning Act and it was held that Section 11 was constitutionally valid. The petitioners before the Supreme Court were owners of plots of land situate in Greater Bombay and they prayed for preventing the respondent Municipal Corporation from giving effect to the designation of land in the development plan or for removing the green belt in which their lands were ear-marked. One of the petitioners also prayed for a writ directing the issuance of a commencement certificate for development of the land. The Supreme Court considered the various provisions of Bombay Town Planning Act, particularly Sections 7, 10, 11 and 17 thereof, and observed in para 14 of the judgment:--
"14. The idea behind this sub-section is that if any land is to be set apart for public purposes such as parks etc. mentioned in Clause (b) of Section 7 or any other public purpose which might be approved by a local authority or directed by the State Government in terms of Clause (e) of Section 7, the State Government must examine whether it would be possible for the local authority, to be able to acquire such land by private agreement or compulsory purchase within a period of ten years'. This acts as a check on the local authority making too ambitious proposals for designating lands for public purposes which they may never have the means to fulfil. It is obvious that the local authority must be given a reasonable time for the purpose and the legislature thought that a period of 10 years was a sufficient one."
Strong objection was taken on behalf of the petitioners before the Supreme Court to Section. 17 of the Bombay Town Planning Act providing for revision of the development plan after every ten years on the ground that it gave the local authority concerned almost an unlimited power to protract the finalisation of development plan if they were so minded in which case the owners of the property would be completely at the mercy of the local authority with respect to the development of their own land. The Supreme Court had to see whether in such cases where large powers are given to certain authorities, the exercise whereof may make serious inroads into the rights of properties of private individuals, there was any guidance to be collected from the Act itself, its object and its provisions, in the light or the surrounding circumstances which made the legislation necessary, taken in conjunction with well known facts of which the court might take judicial notice. It was observed that the preparation of development plan for Greater Bombay was an immense task and the authorities proceeded with it in a manner to which no exception could be taken, and in view of the enormity of the task for the local authority to find funds for the acquisition of lands for public purposes a period of 10 years was not too long. In the facts and circumstances of the case it was found that nothing was done by the Bombay Municipal Corporation haphazardly, suggestions and objections at all stages were carefully considered, and the assistance of committee of experts was taken.
15. The following observations of the Supreme Court are relevant:
"No one can be heard to say that the local authority after making up its mind to acquire land for a public purpose must do so within as short a period of time as possible ..... The finances of a local authority are not unlimited nor have they the power to execute all schemes of proper utilisation of land set apart for public purposes as expeditiously as one would like. They can only do this by proceeding with their scheme gradually, by improving portions of the area at a time, obtaining money from persons whose lands had been improved and augmenting the same with their own resources so as to be able to take up the improvement work with regard to another area marked out for development. The period of ten years fixed at first cannot therefore be taken to be the ultimate length of time within which they had to complete their work. The legislature fixed upon this period as being a reasonable one in the circumstances obtaining at the time when the statute was enacted. We cannot further overlook the fact that modifications to the final development plan were not beyond the range of possibility. We cannot therefore hold that the limit of time fixed under Section 4 read with Section. 11(3) forms an unreasonable restriction on the rights of a person to hold his property." The petitions were therefore dismissed.
So far as the present case is concerned, it is obvious that the revised development plan will be in force up to 15-9-1993, and so it cannot be declared that the designation and reservation of the disputed lands for the purpose of municipal housing has lapsed, The first prayer of the petitioners is, therefore, rejected.
16. So far as the second question is concerned, the provisions of the Urban Land Act also will have to be considered. The Urban Lands Act came into force with effect from 17-2-1976 and its object is to provide for imposition of a ceiling on "vacant land" in Urban agglomeration or the acquisition of such land in excess of the ceiling limit and to regulate the constructions of building on such lands with a view to preventing the concentration of urban land in the hands of a few persons and with a view to bringing about the equitable distribution of land in urban agglomeration to subserve the common good. Section 6 of the Urban Land Act requires every person holding vacant land in excess of the ceiling limit at the commencement of the Act to file a statement before the Competent Authority. Section 8 provides for preparation of the draft statement as regard the vacant land held by any person in excess of the ceiling limit and for calling for objections from the owner. The Competent Authority is empowered to dispose of the objections by passing appropriate orders and also to prepare a final statement under Section 9 of the Act. After such final statement is served on the person concerned, the Competent Authority is required to acquire the land held by such person in excess of the ceiling limit in accordance with the procedure prescribed in Section 10 and compensation is to be determined under Section 11 of the Act.
17. The Honourable Supreme Court had to examine the scheme of the Urban Land Act in State of Gujarat v. Parsottamdas Ramdas Patel, AIR 1988 SC 220, wherein the respondents who were the original petitioners had questioned the applicability of the provisions of the Urban Land Act to several pieces of land situated in the City of Ahmedabad and had also prayed that the land acquisition proceeding under the Land Acquisition Act, 1894 which had already been initiated in respect of the land in question should be completed and the Land Acquisition Officer should be directed to pass award in favour of the respondent. The State Government had already issued notifications under Section 4(1) and Section. 6 of the Land Acquisition Act, and yet the Supreme Court was not inclined to grant the prayer for directing the Land Acquisition Officer to proceed further and to pass award under the Land Acquisition Act. The Hon'ble Supreme Court set aside the judgment of the Gujarat High Court and held that the Urban Land Act had overriding effect on all other laws and when the lands in question were likely to be acquired under the ceiling law by paying compensation as provided therein, it would not be proper to compel the Government to acquire them under the provisions of Land Acquisition Act, 1894. The submission made on behalf of the original petitioners that the lands which were under reservation were not the "vacant land" as defined into Section. 2(q) of the Urban Land Act was rejected.
18. Similar views were expressed by the Honourable Supreme Court in Dattatray Shankarbhai Ambalgi v. State of Maharashtra, AIR 1989 SC 1796. A development plan had been sanctioned with regard to lands situated in the City of Sholapur, including the petitioner's lands under Maharashtra Regional and Town Planning Act, 1966, and some lands of the petitioner were reserved for public purpose under that Act. However, proceeding for acquisition of vacant land in excess of the ceiling limit placed under the Urban Land Act which came into force on 20th February, 1976, were initiated against the petitioner. So the petitioners prayed for a declaration that the Urban Land Act did not apply to land reserved for public purpose under the Maharashtra Regional Town Planning Act. The other incidental prayers were also made. The Honourable Supreme Court referred to the overriding provisions made in Section. 42 of the Urban Land Act and followed its earlier view expressed in the case of Parsottamdas Patel, AIR 1988 SC 220 (supra) that it was open to the State Government to drop the land acquisition proceeding under Section 48 of the Land Acquisition Act, It was held that the Urban Land Act did apply to land reserved for public purpose under the Town Planning Act and none of the provisions of the Urban Land Act was ultra vires. It was observed that once the land falls beyond the ceiling limit prescribed by the Act and is capable of being acquired as surplus land under Section 10 of the Act it would be wholly inappropriate to acquire the same very land under the Town Planning Act inasmuch as it would result in misuse of public funds, by granting higher compensation when the purpose of acquisition could be achieved on payment of lesser amount of compensation prescribed in Section 11 of the Urban Land Act.
19. In view of this unequivocal pronouncement by the Supreme Court the second question also has to be answered in the negative.
20. Now in the peculiar facts and circumstances of the present case the only question that remains for our consideration is whether the respondents can refuse to take any action whatsoever and at the same time sit tight over the lands of the petitioners. In the present case the respondent Corporation refused to proceed further with acquisition of the land not on the ground that it is not possible to do so under the relevant Town Planning Act, but on the ground that the provisions of the Urban Land Act have come into force though there is nothing on record to show that any action is taken under the Urban Land Act. In fact the respondent Corporation admittedly has taken steps to acquire the land not only by way of negotiations, but also by requesting the State Government to move its machinery under the provisions of the Land Acquisition Act. However, because the State Government took a decision that acquisition cannot be effected unless and until the proceedings under the Ubran Land Act are completed, the Municipal Corporation also felt that it was not possible to deal with the petitioners' lands unless the petitioners were in a position to produce a Non-Objection Certificate from the Competent Authority under the Urban Land Act. So we are of the view that the observations made by the Supreme Court in K.L. Gupta's case (AIR 1968 SC 303) (supra) which would generally help the local authority in postponing its decision in view of the enormity of the task, but not the State Government in refusing to help the local authority in implementing acquisition of land, do not help the present respondents, who have already proceeded some length in the direction of acquiring the lands. The lands are under reservation under the provisions of the Town Planning Act and the authorities are now expected to take further steps for its acquisition, if the lands are to be kept under reservation.
21. Now in view of the fact that the respondents have insisted on reservation of the lands and respondent No. 1 has taken steps for acquiring the lands, by way of negotiation and by requesting the State Government to move its machinery under the provisions of the Land Acquisition Act, we will have to call upon the respondents to take some decisive action under the Urban Land Act in respect of the petitioner's lands within a period of six months, after which period reservation of the land will be deemed to have; lapsed. If the respondents so choose they can declare even earlier that the lands are no longer reserved, and in both these contingencies the petitioners' lands would become subject to the provisions of the Urban Land Act and it would be within the powers of the Competent Authority to acquire excess land under Section 10 of the Urban Land Act.
22. In arriving at this decision we would derive some analogy from the Judgments of the Supreme Court. In H.D. Vora v. State of Maharashtra, AIR 1984 SC 866, their Lordships observed that the Government cannot under the guise of requisition continued for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power conferred on the Government. In that case the order of requisition was held to have ceased to be valid even though it was valid when made as it continued for an unreasonable long period of 30 years. In the present case the facts are not on all fours, but the reservation has obviously continued for a period of 25 years since the Government sanctioned the development plan on 21-8-1965.
23. In Jivanikumar Paraki v. The First Land Acquisition Collector, Calcutta, AIR 1984 SC 1707, also their Lordships considered the fact that a part of the building had remained under requisition for over 25 years and issued certain directions. It was held that the impugned requisition order was valid, but continuance of the requisition was permitted subject to the condition that the Government was to take steps to acquire premises in question by following the procedure prescribed in Section 49(1) of the Land Acquisition Act within a period of three years.
24. We make it clear that we are not led away in any manner by the concepts of requisition and acquisition as discussed by the Honourable Supreme Court. But we are of the view that neither the Judgment of the Supreme Court in the case of K.L. Gupte (AIR 1968 SC 303) (supra) nor the provisions of the Urban Land Act justify the inaction on the part of the respondents. Respondent No. 1 Corporation has admittedly taken steps in the direction of acquiring the land and it is now for respondent No. 2 State of Gujarat to take further steps for acquisition of land and determination of compensation, in order to put an end to the uncertainty faced by the petitioners.
25. We, therefore, put the respondents to choice and accordingly direct them to effect the acquisiton by mutual agreement with the petitioners or to take a decisive action in respect of the petitioners' lands under the provisions of Urban Land (Ceiling & Regulation) Act, 1976, within a period of six months from the receipt of the writ of this Court. In case such action is not taken, it would be concluded that the respondents do not intend to continue the reservation any more, and in that case the lands would still be subject to the provisions of the Urban Land Act as "unreserved lands". It is clarified that it would be open to the respondents to declare even before the lapse of six months that the lands are unreserved lands.
Rule is made absolute only to the aforesaid extent with no order as to costs.