Gujarat High Court
Bhikhubhai Shamaldas Patel And Anr. vs State Of Gujarat And Ors. on 9 March, 1995
Equivalent citations: (1995)2GLR1694
JUDGMENT M.R. Calla, J.
1. Heard learned Counsels for the parties.
Rule. Learned Counsel for the respondents waive service of the Rule.
2. On the request of learned Counsel, this Special Civil Application is taken up for final hearing, today.
3. The petitioners claim to be the owners and occupants of the land bearing Survey No. 169/1-2-3 of Town Planning Scheme No. 23 of Acher village within the limits of Ahmedabad Municipal Corporation. In the year 1962, the intention of the Development Plan was declared and in pursuance thereof, the first Development Plan was issued in the year 1965 for a period of 10 years. The petitioners' land as aforesaid was reserved in the GREEN BELT with effect from 1st November 1965 and later on, the GREEN BELT was converted into the category of Public Housing. The lands were so reserved under Section 12(2) of the Gujarat Town Planning and Urban Development Act for Public Housing and the draft revised Plan was made effective from 15th September 1983. The ten years' period of reservation expired on 16th September 1993 and the land in question was not acquired by the Ahmedabad Municipal Corporation or the State Government by agreement or otherwise and the petitioners' case is that, no proceedings under the Land Acquisition Act had been commenced. The petitioners, therefore, served the notice under Section 20(1) of the Gujarat Town Planning and Urban Development Act, 1976, upon the Ahmedabad Municipal Corporation and the Ahmedabad Urban Development Authority, the respondent Nos. 2 and 4 respectively by registered post on 31st March 1994, calling upon them to take such proceedings. The said notice was served upon the respondents on 6th April 1994. A copy of the notice and the postal ackowledgment have been placed on record. The six months statutory period of notice under Section 20(2) also expired on 6th October 1994, but neither the land was acquired nor any steps were made to commence for its acquisition. Thus, in terms of Section 20(2), the designation of the land came to an end and the same had lapsed on 6th October 1994. The petitioners' grievance is that, despite this, in the part plan of redevelopment issued on 8th December 1994, the petitioners' land had been marked as "PH 43 Government" and the staff of the respondents Nos. 2 and 4 have threatened the petitioners to occupy this land. Aggrieved from this action on the part of the respondents, the petitioners have preferred this Special Civil Application under Article 226 of the Constitution of India.
4. The notice was issued on 18th December 1994, but the respondents have not cared to file any return and they have chosen to argue the matter on the basis of the existing pleadings as contained in the petition. The arguments on behalf of the respondent Nos. 2 and 3 are based on the plan of redevelopment issued on 8th December 1994 which has been placed on record at Annexure-E by the petitioners and it has been submitted that the land in question has been included in the part plan of redevelopment on 8th December 1994 and, therefore, the petitioners should wait for another ten years.
5. I have considered the submissions made on behalf of both the sides. Section 20 of the Gujarat Town Planning and Urban Development Act, 1976 is reproduced as under:
20. (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 (k) or Clause (n) of Sub-section (2) of Section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.
(2) If the land referred to 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.
6. So far as the facts of this case as stated by the petitioners in the body of the petition are concerned, the same remain uncontroverted and the averments made by the petitioners read with the contemporaneous documents annexed with the petition make it amply clear that the revised plan had come into force on 15th September 1983 and therefore, the period of ten years for which the land was designated as reserved expired on 16th September 1993 and yet the land was not acquired either by agreement or under the provisions of the Land Acquisition Act. Facing the situation after the expiry of ten years, the petitioners served a notice under Section 20(2) calling upon the respondents to initiate acquisition proceedings but despite the service of such notice, neither the land was acquired nor the proceedings were commenced for acquisition and, therefore, it has to be agreed on all hands that, in terms of Section 20(2) the designation of the land as aforesaid is to be deemed to have lapsed and in the facts of this case, such designation lapsed on 6th October 1994 when this six months period from the date of service of the statutory notice dated 6th April 1994 had expired. It is definitely clear that the respondents did not make use of this land and did not even show any intention to make use of it for a period of over ten years and did not show any interest or regard for legal consequences of their failure to act within the period of ten years from the date the revised plan came into force and they did not wake up despite the service of statutory notice under Section 20(2) by the petitioners, resulting into the lapse of the designation of the petitioners' land as aforesaid. It is rather unfortunate to note the fact of not putting the land in question to any use for any purpose during the period of ten years and again after the expiry of the period of six months from the date of the statutory notice when the six months period had expired on 6th October 1994, the same land which has been made to remain unused for all these years, over a period of more than ten years has again been shown in the part plan of re-development issued on 8th December 1994, nay, no material whatsoever has been placed on record to give any explanation for the inaction on the part of the respondents for all these years and now to include the same land again in the part plan of re-development and show it as marked "PH 43 Government". The learned Counsel for the respondents have failed to show any provision in the Gujarat Town Planning and Urban Development Act, 1976, according to which the same land which is kept lying unused on the basis of the notification under Section 12(2) thereof, may be re-included in the re-development plan so as to make the citizens deprived of their land decades after decades. If at all the land in question was to be made use of for the re-development, sufficient time was there at the disposal of the respondents to go ahead with the matter, but the respondents did not wake up from the slumber even after the service of the statutory notice under Section 20(2) and, therefore, now the same land cannot be included in the re-development plan again so as to make the petitioners to wait for another ten years, more particularly when there is no authority of law for doing so. The powers which have been given under Section 12 of the aforesaid Act had been exercised in the year 1983 and thus, the respondents exhausted the power by issuing such notification under Section 12(2) in the year 1983 and the power which stood exhausted way back in the year 1983 and the designation which was already lapsed on 6th October 1994 could not be given a new lease of life by including the same in the re-development plan. It is the settled principle of law that, what cannot be done directly, cannot be allowed to be done in an indirect manner and it is also trite law that once the statute provides a particular thing to be done in a particular manner, it has to be done in that manner alone. In the facts of this case, the legal consequences prescribed under Section 20 must follow the logical end and if the designation of the land has lapsed, the same cannot be revived by issuing the re-development plan again so as to prolong the agony of the citizens of the State without any justification.
7. The upshot of the aforesaid discussion is that, this Special Civil Application succeeds and the same is accordingly allowed. The respondents are restrained from giving effect to and acting upon the part plan of re-development (issued on 8th December 1994) showing the petitioners' land marked as, "PH 43 Government" to the prejudice of the petitioners and the respondents are restrained from occupying this lands or from raising any construction thereon and they are also restrained from interfering with the petitioners' rights over this land in any manner. However, the land will be subjected to the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 and the petitioners will be duty bound to discharge their obligations to take appropriate steps with regard to this land under the said Act and the concerned Competent Authority and the Government of Gujarat shall also be free to take the proceedings in accordance with law. Rule is made absolute in terms aforesaid. The interim order dated 16th December 1994 shall stand automatically vacated as the same is no more required. There shall be no order as to costs.