Gujarat High Court
Taraben Chandulal Prajapati vs Vadodara Municipal Corporation on 4 September, 2003
Author: K.A. Puj
Bench: K.A. Puj
JUDGMENT K.A. Puj, J.
1. This petition is filed under Article 226 of the Constitution of India seeking declaration from this Court that the reservation of the lands of the petitioners bearing Survey Nos. 504, 506, 508, 514, 515, 519 and 520 of Village Atladara, District-Vadodara, has lapsed and that the lands are no more under reservation. The petitioners have also sought for direction to the respondents to act in accordance with law and to treat the lands of the petitioners as 'deserved' and to give Zoning Certificate to the petitioners by deleting the reservation. The petitioners have further sought the directions to the respondents to allow the petitioners to develop the lands commensurate with the zoning regulations of Vadodara Urban Development Authority and to sanction the plans for development and not to interfere with the development of the lands and the constructions made thereon by the petitioners.
2. As far as the issue regarding reservation of the lands in question is concerned, the same is squarely covered by the decision of the Hon'ble Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mills (Pvt.) Ltd., and others - (2003) 2 SCC 111. In fact, the Hon'ble Supreme Court has confirmed the decision of this Court in the case of Palitana Sugar Mills (Pvt.) Ltd., v. State of Gujarat and Others 42(4) GLR 3048. The view canvassed by the petitioners in the present petition is no longer now res integra. If the lands are reserved in the final development plan of Vadodara Urban Development Authority ("VUDA" for short) for the public purpose and if the same are not acquired within 10 years and notice of 6 months is given under sub-section (2) of Section 20 of the Gujarat Town Planning and Urban Development Act ("Act" for short) and the authority for whose purpose the reservation is made fails to acquire the lands the reservation would lapse.
3. For appreciating the issue raised in the present petition, in the light of the statutory provisions as well as the judicial pronouncements made by the Apex Court, it is necessary to narrate the brief facts. The petitioners are the owners of land bearing Survey Nos. 504, 506, 508, 514, 515, 519 and 520 which were put under reservation for workshop for Vadodara Municipal Corporation and BMC Store and River Development Scheme. The final development plan of VUDA sanctioned under Section 17 of the Act came into force on 25th January 1984 and the period of 10 years has expired on 24th January 1994.
4. The petitioner No. 1, through their Advocate gave notice on 5.7.1993 to the VUDA to dereserve the land belonging to the petitioner No. 1 on the ground that the said lands were not required for the purpose for which the same were reserved. However, the VUDA had given reply dated 28.9.1993 stating that the said land is reserved under the sanctioned development plan by Baroda Municipal Corporation for the purpose of Workshop and BMC Store and hence it could not be dereserved. The petitioners thereafter issued statutory notice under sub-section (2) of Section 20 of the Act pointing out that the period of 10 years has already expired on 24th January 1994 and calling upon the authorities to acquire the lands within six months from the notice dated 12th April 1996 which period expired on 12th August 1996. In response to the said notice, neither any acquisition proceedings were initiated nor any reply to that effect was given by VUDA. The petitioners thereafter issued another notice on 10th January 2000 wherein it was pointed out that the lands in question were earlier reserved for Atladara Suez purification but since the lands were not acquired, nor acquisition proceedings were even initiated the same were not considered to be reserved land. It was further pointed out in the said notice that since the lands were not acquired the reservation was deemed to have been lapsed after the expiry of the period of 10 years. Possibly, in response to the said notice, VUDA gave reply on 6th July 2000 informing the petitioners that the lands could not be put in the residential zone and the zone should not be changed.
5. It is in the above background of the matter, the present petition is filed by the petitioners invoking the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India.
6. Mr. RS Sanjanwala, learned Senior Advocate appearing for the petitioners submitted that Section 20(1) and Section 20(2) of the Act are mandatory in nature. No steps whatsoever were taken by the Vadodara Municipal Corporation for acquisition of the lands of the petitioners which were reserved. It is further submitted that no proceedings were commenced for acquisition within the longer period of 10 years from 25th January 1984, the date when the final development plan of VUDA was sanctioned. No action for acquisition was taken within 6 months notice period in accordance with sub-section (2) of Section 20. He has, therefore, submitted that the inaction on the part of the authorities showed that there was no need of the petitioners 'lands for the specified purpose for which the same were reserved. He has, therefore, submitted that on expiry of 10 years' period from the coming into force of the final development plan and thereafter inability of the authorities to acquire the land within six months from the date of service of notice for acquisition by the petitioners, the statutory result, as provided in sub-section (2) of Section 20 of the Act, is dereservation of the land designated for particular specified rules or purpose, and entitlement to grant of relief to the petitioners of restoration of land for development by them, in accordance with law. In support of his submission, he has relied on the decision of this Court in the case of Palitana Sugar Mills (P) Ltd & Anr. v. State of Gujarat & Others (Supra), which is confirmed by the Hon'ble Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mills (P) Ltd & Others (Supra). He has submitted that after pronouncement of judgment by the Hon'ble Supreme Court on this issue, this Court has disposed of several petitions involving identical question more particularly Special Civil Application No. 5468 of 1995 to 5478 of 1995, decided by this Court [Coram: H.K. Rathod, J.] on 27.12.2002 and Special Civil Application No. 769 of 2002 decided by this Court [Coram: C.K. Buch, J.] on 20th February 2002.
7. Mr. MD Pandya, the learned Senior Advocate appearing for VUDA and Mr. Pranav G. Desai, the learned Advocate appearing for Vadodara Municipal Corporation have not controverted the fact that the issue regarding dereservation is covered by the decision of the Hon'ble Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mills (P) Ltd & Others (Supra). However, the relief prayed for by the petitioners in the present petition with regard to change of zone and to grant sanction to the plans for development as well as non-interference in the development of the lands and the constructions made by the petitioners on such lands cannot be granted.
8. To appreciate the controversy raised in the present petition, it is necessary to have a close look at the provisions contained in Section 20 of the Act. It reads 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 (f), clause (k), clause (n) or clause (o)] of sub-section (2) of section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.
(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 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."
9. While interpreting the above provisions in the context of the entire scheme of the Act, this Court in the case of Palitana Sugar Mills (P) Ltd.,& Anr. v. State of Gujarat & Others (Supra), has observed that sub-section (2) of Section 20 in the event of failure of the authorities to acquire the land by agreement or in land acquisition proceedings, confers a right on the owner or a person interested in the designated or reserved land, to serve a notice on the authority to acquire the land, and if within six months after service of notice, no steps are commenced for its acquisition, designation of the land for the purpose mentioned in clauses specified in sub-section (2) of Sections 12 and 20, would lapse.
It was further observed that the words 'so far as may be' used in Section 21 for applying to the provisions, Sections 9 to 20 of the Act clearly intend to convey that the provisions of Sections 9 to 20 in so far as they can be made available would be followed in the process of revision under Section 21. The previous operation of Sections 9 to 20 resulting into preparation of a final development plan and on its commencement with expiry of 10 years, a right created in favour of the land owner to serve 6 months' notice to get his land dereserved is not nullified by subsequent revision of the plans.
Thus, after observing this, the Court held that on the interpretation of Sections 20 and 21 of the Act, mere issuance of a draft revised final development plan under Section 21 of the Act by the Authority, shall not take away the right already accrued and vested in the land owner on expiry of 10 years' period from the existing Final development plan and failure of the authority to acquire the land in six months' notice period. In the case of all the land owners before the Court, provisions of Section 20 have been availed and would, therefore, operate to their benefit into resulting of dereservation of the land from designated purposes specified in Section 12 of the Act, because of the failure of the authorities in acquiring the land.
10. The above decision of this Court was confirmed by the Hon'ble Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mills (P) Ltd & Others (Supra). While dismissing the appeals preferred by the Bhavnagar University against the judgment of this Court, the Hon'ble Supreme Court has held that by reason of the provisions of the said Act, a reasonable restriction has been imposed upon the owner on the user of its property under Section 12 of the Act, Town Planning is contemplated through preparation of draft development plan. In terms of such development plan, reservation of certain lands for public use is also provided. Sections 20 and 21 of the said Act are required to be read conjunctively with Sections 12 and 17 of the Act, whereas in terms of Section 12 and 17 of the said Act, reservation and designation have been provided, sub-section (1) of Section 20 is an enabling provision in terms whereof the State becomes entitled to acquire the land either by agreement or by taking recourse to the provisions of the Land Acquisition Act. If by reason of a revised plan, any other area is sought to be brought within the purview of the development plan, evidently in relation thereto the State will be entitled to exercise its jurisdiction under sub-section (1) of Section 20 but the same would not confer any other or further power upon the State to get duration of designation of land, which has lapsed, extended.
The Hon'ble Supreme Court has further held that sub-section (2) of Section 20, however, carves out an 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 therein; it provides that in the event the land referred to in sub-section (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 lands shall be deemed to have lapsed. A legal fiction, therefore, has been created in the said provision and when such a legal fiction is created, it must be given its full effect. The Hon'ble Supreme Court has, therefore, emphatically held that the relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain reading of the said provisions would lead to only one conclusion, namely, that in the event of a notice 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.
The Hon'ble Supreme Court has also taken a note of the fact, that 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 a development plan and for the said purpose, Section 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. Only because Section 20 has been referred to therein, it would not mean that thereby the Legislature contemplated that the time of 10 years specified by the Legislature for the purpose of acquisition of the land would get automatically extended. Following the principle of interpretation that all words must be given their full effect, full effect must be given to the words "so far as may be" which shall apply to such revision. The said words indicate the intention of the Legislature to the effect that by providing revision of final development plan from time to time or at least once in 10 years, in which the procedure or preparation thereof as provided therein, is required to be followed. Such procedural requirement must be followed so far as it is reasonably possible. Section 21 of the Act does not and cannot mean that the substantial right conferred upon the owner of the land by the person interested therein shall be taken away. It is not and cannot be the intention of the Legislature that what is given by one hand should be taken away by the other. 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 21 does not manifest a legislative intent to curtail or take-away the right acquired by land owner under Section 20(2) of getting the land which is defreezed. What is contemplated in Section 21 is to meet the changed situation and contingencies which might not have been contemplated while preparing the first final development plan. The power of the State enumerated under sub-section (1) of Section 20 does not become ipso facto available in the event of issuance of a revised plan as the said provision has been specifically mentioned therein so that the same may use the same power in a changed situation.
11. After the aforesaid judgment of the Hon'ble Supreme Court, this Court [Coram: H.K. Rathod, J.] has disposed of Special Civil Applications No. 5468 of 1995 to 5478 of 1995 on 27.12.2002 by holding that the lands reserved by the respondent authorities, having not been acquired within 10 years from the date of coming into force of the existing final development plan or within six months of the notice period, shall stand released in favour of the petitioners for development by them in accordance with law. The reservation of the land in question by order dated 22.12.1994 is declared to have been lapsed with all consequential effects under Gujarat Town Planning Act, 1976.
12. In Special Civil Application No. 769 of 2002, this Court was concerned with the case whereby, pursuant to the earlier order passed by this Court while dealing with Special Civil Application No. 9990 of 1995 on 2.8.2001, the directions were sought for against the respondents to sanction the plan submitted with Valsad Municipality. The grievance of the petitioner was that though this Court has positively held that the reservation in the development plan 1994 qua the land bearing City Survey No. 1809 of Municipal House No. 7/92 situate at Valsad has lapsed and the respondent municipality should sanction the development as submitted by the petitioner if it was otherwise found in accordance with the norms, byelaws etc., the demand has not been accepted. In this context, this Court, while disposing of the said Special Civil Application on 20th February 2003, directed the respondent Municipality to act in accordance with law and sanction the plan as already submitted by the petitioners. It was also clarified that if any defect in the plan was found, the petitioner would be asked by the Municipality to make appropriate changes or alteration in the same. The Court has also made it clear that in the event of Municipality not complying with the directions issued by the Court within 45 days from the date of receipt of writ of this Court or production of certified copy of decision of this Court, then the petitioner would be at liberty to proceed with the development of the land in question as if the plan was deemed to have been approved by the authority under the relevant provisions of laws and byelaws.
13. In view of the above settled legal position, the prayer made in Para 14(A) of the petition is hereby granted and it is declared that the reservation of the lands of the petitioners being Survey No. 504, 506, 508, 514, 515, 519 and 520 of Village Atladara, District-Vadodara, has lapsed and the said lands are no longer under reservation now. However, with regard to the prayers made in Paras (B) and (C) of Para 14 of the petition, it is held that the petitioners can apply to the respondent authorities for issuance of necessary Zoning Certificate and/or development of the lands in question and the same can be processed by the respondent authorities in accordance with law and appropriate decision may be taken in accordance with relevant statutory provisions, rules and regulations and byelaws. It is, however, made clear that neither the Zoning Certificate nor the development permission should be denied to the petitioners merely on the ground that the land is still under reservation and if the demand of the petitioners is found to be in order complying with all the statutory requirements and fulfilling the criteria laid down in the relevant rules and regulations as well as byelaws, the same may be granted to the petitioners, within a reasonable time which cannot be in any case beyond the period of 3 months from the date of receipt of writ from this Court or from the date of receipt of certified copy of this order, whichever is earlier, or not beyond the period of three months from the date of receipt of any fresh application in this regard from the petitioners.
14. With the aforesaid observations and directions, the petition is allowed. Rule is made absolute to the above extent, without any order as to costs.