Gujarat High Court
State Of Gujarat Through Secretary & vs Hariben Meghajibhai Jasoliya & 5 on 22 September, 2015
Author: Jayant Patel
Bench: Jayant Patel, N.V.Anjaria
C/LPA/1244/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1244 of 2015
In SPECIAL CIVIL APPLICATION NO. 1653 of 2014
With
LETTERS PATENT APPEAL NO. 1245 of 2015
In
SPECIAL CIVIL APPLICATION NO. 1654 of 2014
==========================================================
STATE OF GUJARAT THROUGH SECRETARY & 1....Appellants
Versus
HARIBEN MEGHAJIBHAI JASOLIYA & 5....Respondents
==========================================================
Appearance:
MR RAKESH PATEL ASSISTANT GOVERNMENT PLEADER for Appellants
MR SS SANJANWALA with MR DILIP L KANOJIYA, CAVEATOR for
Respondent Nos. 1 - 4
MR DIPAK ALORIYA for MR HARDIK C RAWAL, ADVOCATE for Respondent
No. 6
==========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 22/09/2015
COMMON ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1. As both the appeals arise from the common judgment passed by the learned single Judge of this Court, they are being considered and disposed of simultaneously. Page 1 of 12 HC-NIC Page 1 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER
2. Both the appeals are directed against the judgment dated 26.2.2015 passed by the learned single Judge in Special Civil Application Nos. 1653 and 1654 of 2014, whereby the learned single Judge, for the reasons recorded in the judgment has allowed the petitions.
3. We have heard Mr. Rakesh Patel, learned Assistant Government Pleader for the appellants, Mr. S.S.Sanjanwala, learned counsel appearing with Mr. Dilip Kanojiya on caveat for respondent nos. 1 to 4 and Mr. Dipak Aloriya, learned counsel appearing for Mr. Hardik Raval for the respondent no.6 on advance copy.
4. The only contention raised by the learned AGP was that notice was given by the original petitioners under Section 20(2) of the Gujarat Town Planning & Urban Development Act, 1976 (hereafter to be referred to as "the Act") for acquisition of the land in question within six months from the date of the said notice and the period of six months was to expire on 7.2.2013. Before the expiry of the period of six months, no proceedings for acquisition of the land in question were initiated. However, in the submission of the learned AGP, before lapsing of the reservation on 22.6.2011, the intention for revised draft development plan was published and objections were invited and in response to the publication of the said notification dated 22.6.2011, objections were also filed by the original petitioners dated 6.8.2012 that the land should not be included in the reservation and instead of pursuing the said proceedings, on Page 2 of 12 HC-NIC Page 2 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER the next day, that is, on 7.8.2012, notice under Section 20(2) of the Act was issued. It has been further submitted that thereafter, on 7.12.2013, revised development plan was published and therefore, as per the learned AGP, once the revised development plan was published and it came into operation, the question of lapsing of the reservation as per the earlier plan which was no more in operation would not survive. It was also submitted that the original petitioners did not prefer the petitions immediately after the expiry of six months on 7.2.2013, but rather preferred the petitions in 2014 after the new draft development plan came into operation. He submitted that the petition could be said as infructuous or in any case, if time-limit is considered from the date of revised draft development plan, that is, 17.12.2013, the reservation would not lapse. It was submitted that the aforesaid aspect has not been properly considered by the learned single Judge and this Court may consider the same in the present appeal.
5. Whereas Mr. Sanjanwala, learned counsel for the original petitioners submitted that in the draft development plan for the first time or for the second time, in the revised development plan the reservation was for the purpose of S.T.Bus terminus for the benefit of Gujarat State Road Transport Corporation (hereafter to be refereed to as "GSRTC"). As per the original petitioners, the GSRTC had addressed the communication to the Bhavnagar Urban Development Authority (hereafter to be Page 3 of 12 HC-NIC Page 3 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER referred to as "BADA") that it has no funds for the acquisition of the land in question. It was, therefore, submitted that under these circumstances, even if the reservation would have continued, the acquisition was not possible and hence, the lapsing of the reservation is not going to adversely affect the beneficiaries or the acquiring body, since the acquiring body is not interested in the acquisition. He submitted that the GSRTC has not preferred any appeal against the order of the learned single Judge, but the State has come out in the appeal which could not be said to be adversely affected party. He also submitted that in any case, the BADA has also not preferred any appeal and the appeal is preferred only by the State and the Collector on behalf of the State, and therefore, the same may not be entertained by this Court.
6. In our considered view, had the contention raised by the learned AGP not been considered by the Apex Court in its decision in the case of Palitana Sugar Mill Pvt. Ltd & Ors vs. State of Gujarat, reported at 2001 (2) G.L.H. 294, it might stand on different consideration. But as per the above- referred decision, the Apex Court has found that the deeming fiction for lapsing of the reservation would not go away even if the re-reservation is made in the new draft development plan as per Section 21 of the Act. We may, at this stage, usefully refer to the observations made by the Apex Court in its decision in the case of Bhavnagar University vs. Palitana Sugar Page 4 of 12 HC-NIC Page 4 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER Mill (P) Ltd & Ors, reported at (2003) 2 SCC 111, which are reproduced as under:
"29. By reason of the provision of the said Act, a reasonable restriction, has been imposed upon the owner on the user of his property. In terms of Section 12 of the said Act, town planning is contemplated through preparation of draft development plan which contains not only proposals for designating certain area for residential, industrial, commercial, agricultural or recreational purposes but also for the purposes for maintaining environment and ecological balance by setting up zoological gardens, green belts, natural reserves and sanctuaries. In terms of such development plan reservation of certain land for public use is also provided. From the relevant provisions of the said Act, as noticed hereinbefore, it is absolutely clear that in terms thereof the State Government is made the ultimate authority to publish a development plan, inter alia, providing for designation or reservation of the land. The State Government while arriving at its conclusion as regards public interest involved in the matter is required to arrive at its satisfaction on objective basis as provided in terms of sub-section (2) of Section 17 to the effect that the lands in respect whereof reservation is proposed to be made can be acquired for the fulfillment of the object therefor either by agreement or compulsory acquisition within the period specified therein. It has not been disputed before us nor is it necessary to consider in the facts and circumstances of this case as to whether establishment of the educational institutions or universities would be covered by the provisions of sub- section (2) of Section 12 thereof
30. Sections 20 and 21 of the said Act are required to be read conjunctively with Sections 12 and 17. We may notice that clause (k) of sub-section (2) of Section 12 does not find mention in sub-section (2) of Section 17 as regards proposed reservation for the State and other statutory authorities but clauses (n) and (b) of sub- section (2) of Section 12 are specifically mentioned in Section 20. In Section 20, provisions of clauses (b), (d),
(f), (k) and (o) of sub-section (2) of Section 12 have specifically been mentioned. The High Court has Page 5 of 12 HC-NIC Page 5 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER proceeded on the basis that the words designation or reservation are interchangeable for the purpose of the Act. The said finding of the High Court is not in question.
31. Whereas in terms of Sections 12 and 17 of the said Act, the reservation and designation have been provided, sub-section (1) of Section 20 thereof only enables the authorities to acquire the land designated or reserved for the purpose specifically mentioned in clauses (b) and (n) of sub-section (2) of Section 12 as also other clauses specified therefor either by acquisition or agreement or in terms of the provisions of the Land Acquisition Act.
Sub-section (1) of Section 20 is merely an enabling provision.
32. Sub-section (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 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 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 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."Page 6 of 12
HC-NIC Page 6 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER 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. Honble 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 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 Bombays 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:-
"8. 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."Page 7 of 12
HC-NIC Page 7 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER 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 sub-section (2) shall be made after the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan, secondly, by enacting subsection (4) of Section 126 that if a declaration is not made within the period referred to in sub-section (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."
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 Page 8 of 12 HC-NIC Page 8 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER 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.
36. The question, however, is as to whether only because the provision of Section 20 has been referred to therein; would it mean that thereby the Legislature contemplated that the time of ten years specified by the Legislature for the purpose of acquisition of the land would get automatically extended? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given its full effect, we must also give full effect to the words "so far as may be" applied to such revision.
37. The said words indicate the intention of the Legislature to the effect that by providing revision of final development plan from time to time and at least once in ten years, only the procedure or preparation thereof as provided therein, is required to be followed. Such procedural requirements must be followed so far as it is reasonably possible. Section 21 of the Act, in our opinion, does not and cannot mean that the substantial right conferred upon the owner of the land or 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.
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 land-owner 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.
39. Sub-section (1) of Section 20, as noticed hereinbefore, provides for an enabling provision in terms whereof the State become entitled to acquire the land either by agreement or 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 Page 9 of 12 HC-NIC Page 9 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER 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 it will bear repetition to state that the same would not confer any other or further power upon the State to get the duration of designation of land, which has been lapsed, extended. What is contemplated under 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 applicable in the event of issuance of a revised plan as the said provision has been specifically mentioned therein so that the State may use the same power in a changed situation."
7. In view of the above, the learned single Judge, after having considered the above-referred observations of the Apex Court in the case of Bhavnagar University (supra), at paragraphs 22 and 23, observed thus:
"22. Applying the ratio laid down by the Apex Court in the case of Bhavnagar University (supra) in both the cases, the petitioners have issued notices under Section 20(2) of the Act and in both the cases, the authorities for whom the lands are reserved have failed to acquire the lands in question and therefore, reservation automatically lapses. This Court finds that, even though, the notices were issued, the very action of re-reserving the lands under Section 21 of the Act in the second revised development plan, which came to be sanctioned under Section 17 of the Act, is illegal, erroneous and unconstitutional.
23. In light of the binding decisions of the Apex Court, the lands in question should not have been re-reserved in the manner in which, it has been done by the authority as well as the State Government in present petitions. Therefore, stand taken by Mr.Munshaw, learned counsel for BADA that now as the BADA being an appropriate authority has already made a proposal in variation of the development plan in both the cases, decision has become infructuous, deserves to be negatived."
8. The aforesaid shows that the learned single Judge has, for all Page 10 of 12 HC-NIC Page 10 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER purposes, gone by the observations made by the Apex Court in the above decision on the aspect of lapsing of reservation. It may also be recorded that once re-reservation is not to adversely affect the deeming fiction of lapsing of the reservation, the contention raised by the learned AGP for re- reservation could be said as inconsequential.
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 re-reserved under Section 21 of the Act and the second is that if the deeming fiction has already come into operation and the reservation has lapsed and the re- reservation 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 re-reservation. Hence, the said contention cannot be accepted.
10. The aforesaid is coupled with the aspect that so far as the GSRTC, which is the acquiring body, is concerned, it has no funds for acquisition nor is it interested in the acquisition of the land for whose benefit, the reservation was made in the draft Page 11 of 12 HC-NIC Page 11 of 12 Created On Tue Sep 29 00:02:05 IST 2015 C/LPA/1244/2015 ORDER development plan.
11. In view of the above, read with the reasons recorded by the learned single Judge, we do not find any case is made out for interference. Hence, both the appeals are meritless and, therefore, dismissed.
(JAYANT PATEL, ACJ.) (N.V.ANJARIA, J.) pirzada Page 12 of 12 HC-NIC Page 12 of 12 Created On Tue Sep 29 00:02:05 IST 2015