Gujarat High Court
Kishorbhai Nanubhai Patel & vs Surat Urban Development Authority ... on 22 February, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/18100/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
[On note for speaking to minutes of common oral judgment dated
05/02/2016 in C/SCA/18100/2015 ]
SPECIAL CIVIL APPLICATION NO. 18100 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14827 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14828 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14947 of 2015
With
SPECIAL CIVIL APPLICATION NO. 16999 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17014 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17009 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17015 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17045 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17110 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17815 of 2015
With
SPECIAL CIVIL APPLICATION NO. 18007 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1054 of 2016
With
SPECIAL CIVIL APPLICATION NO. 1545 of 2016
With
SPECIAL CIVIL APPLICATION NO. 1632 of 2016
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KISHORBHAI NANUBHAI PATEL & 1....Petitioner(s)
Versus
SURAT URBAN DEVELOPMENT AUTHORITY (SUDA) & 2....Respondent(s)
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C/SCA/18100/2015 ORDER
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Appearance:
MAYANK K TRIVEDI, ADVOCATE for the Petitioner(s) No. 1 - 2
MR KK TRIVEDI, ADVOCATE for the Petitioner(s) No. 1 - 2
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/02/2016
COMMON ORDER BELOW THE NOTE FOR SPEAKING TO MINUTES
1. It is pointed by the learned advocate for the
petitioners that in Paragraph 5 of the judgment
dated 5.2.2016 passed in Special Civil
Application No.18100 of 2015 and allied
matters, instead of "Block No.39/1", "Block
No.39/3" is mentioned.
2. In view of the above, in the judgment dated
5.2.2016, instead of "Block No.39/3, "Block
No.39/1" shall be substituted and read for all
purposes.
3. Registry is directed to issue a fresh writ of
the aforesaid judgment dated 5.2.2016 passed in
Special Civil Application No.18100 of 2015 and
allied matters containing the abovementioned
corrections.
4. Accordingly, the present note for speaking to
minutes stands disposed of.
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C/SCA/18100/2015 ORDER
(R.M.CHHAYA, J.)
mrp
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C/SCA/18100/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18100 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14827 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14828 of 2015
With
SPECIAL CIVIL APPLICATION NO. 14947 of 2015
With
SPECIAL CIVIL APPLICATION NO. 16999 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17014 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17009 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17015 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17045 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17110 of 2015
With
SPECIAL CIVIL APPLICATION NO. 17815 of 2015
With
SPECIAL CIVIL APPLICATION NO. 18007 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1054 of 2016
With
SPECIAL CIVIL APPLICATION NO. 1545 of 2016
With
SPECIAL CIVIL APPLICATION NO. 1632 of 2016
========================================================
KISHORBHAI NANUBHAI PATEL & 1....Petitioner(s)
Versus
SURAT URBAN DEVELOPMENT AUTHORITY (SUDA) &
2....Respondent(s)
========================================================
Appearance:
MR. K.K.TRIVEDI, WITH MR. MAYANK K. TRIVEDI, ADVOCATES FOR
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C/SCA/18100/2015 JUDGMENT
THE PETITIONER(S) IN ALL THE PETITIONS.
MR MANAN MEHTA, AGP FOR THE RESPONDENT - STATE IN SCA
NOS.18100, 16999, 14827, 14828, 14947 OF 2015 AND SCA
NO.1545 OF 2016.
MR SWAPNESHWAR GOUTAM, AGP FOR THE RESPONDENT - STATE IN
SCA NOS.17009, 17014, 17015, 17045, 17110 OF 2015 AND SCA
NOS.1054 AND 1632 OF 2016.
MS VRUNDA SHAH, AGP FOR THE RESPONDENT - STATE IN SCA
NOS.17815 OF 2015.
MS MEGHA CHITALIYA, AGP FOR THE RESPONDENT - STATE IN SCA
NO.18007 OF 2015.
MS H.S.MUNSHAW, ADVOCATE FOR THE SUDA IN SCA NO.14827 OF
2015
MR U.I.VYAS, ADVOCATE FOR THE SUDA IN SCA NOS.18100,
14828, 14947 & 18007 2015 AND SCA NOS.1054, 1545 AND 1632
OF 2016.
MR P.G.DESAI, LEARNED SENIOR COUNSEL WITH MR. DHAVAL G.
NANAVATI, ADVOCATE FOR THE SUDA & SURAT MUNICIPAL
CORPORATION IN SCA NOS.14827, 16999, 17009, 17014, 17015,
17045, 17110, 18007, 1800 & 17815 OF 2015, 1054, 1545 &
1632 OF 2016
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 05/02/2016
COMMON ORAL JUDGMENT
1. Heard learned counsel for the respective parties.
2. As the identical question of law and facts arise in this group of petitions and identical and similar prayers prayed for, all the petitions were heard together and are hereby disposed of by this common judgment.
3. The prayers prayed for in this group of petitions are similar and therefore, the prayers prayed for in Special Page 2 of 24 HC-NIC Page 5 of 27 Created On Mon Feb 29 23:14:30 IST 2016 5 of 27 C/SCA/18100/2015 JUDGMENT Civil Application No.1054 of 2016 are made the basis of this common judgment. Such prayers are as under:-
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue appropriate writ, order or direction/declaration declaring that the reservation /designation of the land bearing Block No.92 of Village Bamroli, Tal:
Choryasi (Now Majura, City Surat), District Surat, Tal:Choryasi, District Surat for site and service for Surat Municipal Corporation (H-11) under the final revised development plan, 2004 of SUDA is deemed to have lapsed.
(C) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to grant interim /ad-interim relief directing the respondents to designate the land bearing Block No.92 of village Bamroli, Tal: Choryasi (Now Majura, City Surat), District Surat, Tal:Choryasi, District Surat for site and service for Surat Municipal Corporation (H-11) under the final revised development plan, 2004 of SUDA is deemed to have lapsed.
(D) ***."
4. The relevant dates relating to the revised draft
development plant of Surat Urban Development Authority are as under:
(i) First development plan was prepared and sanctioned by the State Government on 03.03.1986.
(ii) Revised draft development plan 1996 of Surat Urban Development Authority (hereinafter referred to as "SUDA" for short) was published under Section 13 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act" for short) Act on Page 3 of 24 HC-NIC Page 6 of 27 Created On Mon Feb 29 23:14:30 IST 2016 6 of 27 C/SCA/18100/2015 JUDGMENT 22.09.1996 calling suggestions and/or objections on the proposed revised draft development plan.
(iii) The same was published on the Government Gazette on 29.02.1996.
(iv) SUDA published modification in the revised draft development plan under Section 13 of the Act inviting suggestions or objections on 03.06.1997.
(v) Revised draft development plan submitted by SUDA to the State Government under Section 16 of the Act on 26.08.1997.
(vi) The State Government published modification in the revised draft development plan as provided under Section 17(1)(a) of the Act on 17.05.2001.
(vii) The State Government sanctioned revised development plan vide Notification dated 02.09.2004 and the said final revised development plan has come into force since 15.09.2004.
5. In the final revised development plan sanctioned by the State Government, the lands belonging to the respective petitioners have been reserved for public purpose as enumerated hereinbelow:-
Sr. SCA No. Block/ Area Village Purpose No. Survey (sq.Mtr.) for No. reservati Page 4 of 24 HC-NIC Page 7 of 27 Created On Mon Feb 29 23:14:30 IST 2016 7 of 27 C/SCA/18100/2015 JUDGMENT on 1 1054/16 Block 06-46-49 Bamroli Site & No.92 Service for SMC (H-11) 2 1545/15 Block 01--08-76 Vedchha Transport Nos.117 Node for /A SUDA 3 1632/16 Block 01--08-76 Vedchha do No.117/ B 4 18100/15 Block 02--21-56 Vedchha do No.120 5 16999/15 Block 0-91-06 Vedchha do No.118/ A 6 17009/15 Block 01--26-21 Vedchha do No.113 7 17014/15 Block 02--18-77 Vedchha do No.52 8 17015/15 Block 0-91-05 Vedchha do No.118/ B 9 14827/15 Survey 01-76-20 Gaviyar Store & No.59/1 staff /4/1 quarters for B&D dept. PWD 10 14828/15 Block 0-48-00 Bhimpore Commercia No.39/3 l for SUDA-C-34 11 17045/15 Block 01--23-43 Vedchha Transport No.112/ Node for A SUDA 12 17110/15 Block 02--06-86 Vedchha Transport No.116 Node for SUDA 13 17815/16 Block 1-39-62 Vedchha Transport No.121 Node for SUDA 14 14947/15 Block 0-50-00 Bhimpore Commercia No.39/3 l for SUDA Page 5 of 24 HC-NIC Page 8 of 27 Created On Mon Feb 29 23:14:30 IST 2016 8 of 27 C/SCA/18100/2015 JUDGMENT 15 18007/15 Block 02--21-56 Jahangir PWD store No.95/B pura & SMC Dept.
6. It appears from the record that as the lands so reserved in the final revised development plan as noted hereinabove, the lands in question were not acquired for the purpose for which it is so reserved for aforementioned authority. The petitioners on completion of 10 years, served notice as contemplated under Section 20(2) of the Act as under:-
SCA No. Date of Notice
1054/16 19/02/15
1545/16 12/11/14
1632/16 21/10/14
18100/15 12/11/14
16999/15 20/10/14
17009/15 12/11/14
17014/15 20/10/14
17015/15 12/11/14
14827/15 06/01/14
14828/15 09/10/14
17045/15 21/10/14
17110/15 03/10/14
17815/15 12/01/15
14947/15 08/10/14
18007/15 14/10/14
7. In light of the aforesaid factual background and as requisitioned in the notices given by each of the petitioners under Section 20(2) of the Act to the authority i.e. SUDA and SMC accordingly, (for which the Page 6 of 24 HC-NIC Page 9 of 27 Created On Mon Feb 29 23:14:30 IST 2016 9 of 27 C/SCA/18100/2015 JUDGMENT reservation is made in the revised final development plan) was therefore, put to notice by each of the petitioners to acquire the lands in question within a period of six months and failing which, the reservation shall stand lapsed. As even after a period of six months, the respondent authority did not initiate any proceedings for acquisition as provided under Section 20(2) of the Act, the present petitions are filed.
8. RULE in each of the petitions, returnable forthwith. Rule is waived by learned counsel for the respondents authorities.
9. In response to the notice issued by this Court in each matter, the respondent authorities have also filed Affidavits-in-Reply in all the matters.
10. Learned counsel for the petitioners has taken this Court through the factual matrix as noted hereinabove and it was contended that in view of the fact that the lands in question were reserved in the final revised development plan, the development for the lands in question is freezed since 1996 and after completion of 10 years i.e. on 14.09.2014, as no steps were taken by the respondent authority to acquire the lands in question of the petitioners, the petitioners have issued notice as provided under Section 20(2) of the Act. It was further contended that even after a period of six months is over, the lands of the petitioners have not been acquired and no proceedings for acquisition have been initiated by the respondent authority and therefore, reservation made and provided in the revised final development plan stands lapsed. Learned counsel for the petitioners has relied upon the judgment of the Apex Court in the case of Page 7 of 24 HC-NIC Page 10 of 27 Created On Mon Feb 29 23:14:30 IST 2016 10 of 27 C/SCA/18100/2015 JUDGMENT Bhavnagar University Vs. Palitana Sugar Mills Pvt. Ltd [(2003) 2 SCC 111] and has contended that as held by the Apex Court in the said case, on failure of initiating any proceedings to acquire any land of the petitioners despite service of the notice by the petitioners as owners of the lands in question, reservation lapses automatically. It was further contended that Section 20(2) of the Act creates legal fiction and therefore, once the stipulated period of 10 years has lapsed and it is an admitted position that the lands have not been acquired and no steps are taken for acquisition of lands within a period of six months from the date of service of the order as provided under Section 20(2) of the Act, the lands cannot be re-reserved and the petitioners cannot be deprived of right to use the lands of the purpose(s) permissible under the town planning scheme.
11. Learned counsel for the petitioners has also relied upon the judgment of the Apex Court in the cases of Bhikhubhai Vithhalbhai Patel and Ors. Vs. State of Gujarat & Ors. (2008 (4) SCC 144), Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors. (2003(2) SCC 111) and Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke and Chemicals Ltd. & Ors. (2007(8)SCC 705), judgment of the Division Bench of this Court rendered in the case of Palitana Sugar Mill (P) Ltd. Vs. State of Gujarat (2001 (2) GLH 294), as well as unreported judgment of the Division Bench of this Court rendered in Letters Patent Appeal No.1244 of 2015 and allied appeal dated 22.09.2015 in support of his arguments and therefore, learned counsel for the petitioners submitted that the petitions deserve to be allowed as prayed for.
12. Learned counsel for the respondent authorities has Page 8 of 24 HC-NIC Page 11 of 27 Created On Mon Feb 29 23:14:30 IST 2016 11 of 27 C/SCA/18100/2015 JUDGMENT relied upon the Affidavit-in-Reply filed by SUDA and contended that the lands in question in each of the petitions are reserved for the purpose of Surat Municipal Corporation (hereinafter referred to as "SMC" for short) and therefore, said notice is not valid under Section 20(2) of the Act. Relying upon the amendment made in Section 20(1) of the Act by Gujarat Act, 2014 dated 28.07.2014, it was contended that Section 20(1) has been substituted and therefore, the judgments relied upon by learned counsel for the petitioners are not applicable. It was further submitted that revised development plan is already in progress and the petitioners will be given an opportunity of submitting their objections and suggestions under Section 13 of the Act and SUDA has already initiated such procedure and therefore, the petitions are premature.
13. Learned counsel for the respondent - authorities has contended that the amendment in the Act, 2014 shall have impact upon the land so reserved and has emphasized the said contention as contended in the affidavit filed by SMC and therefore, the notice is not valid and hence, it was submitted that the petitions deserve to be dismissed.
14. Learned AGP for the respondents - State in all the petitions have adopted the arguments made by learned Senior Counsel for the respondents authorities.
No other or further submissions are made by learned counsel for the respective parties.
15. From the factual matrix as noted hereinabove, the dates which are mentioned in the earlier part of the judgment are admitted dates and therefore, they are not dealt with by this Court in detail. However, the fact Page 9 of 24 HC-NIC Page 12 of 27 Created On Mon Feb 29 23:14:30 IST 2016 12 of 27 C/SCA/18100/2015 JUDGMENT remains that in all the petitions, reservation is provided for SUDA and SMC for the purposes as quoted above in the final revised development plan of SUDA, which was sanctioned vide Notification dated 02.09.2004 and the same has come into force on 15.09.2004. On expiry of 10 years, the petitioners in all the petitions have issued notice as provided under Section 20(2) of the Act, and the respondent authority for which such reservations is made has admittedly not acquired the lands within prescribed period of six months.
16. In identical facts and situation in the case of SUDA itself, the Division Bench of this Court in the case of Palitana Sugar Mill (P) Ltd. (supra) has clearly held that reservation in final development plan cannot be for more than 10 years and if it is not acquired and/or if no steps for acquisition is taken within a period of six months from the date of receipt of the notice as provided under Section 20(2) of the Act, reservation would stand lapsed.
17. The said judgment i.e. Patinana Sugar Mill (P) Ltd. came to be challenged by the authority as well as the State Government before the Apex Court and in the case of Bhavnagar University (supra), wherein similar action of SUDA is also challenged and the Apex Court has observed thus:-
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 Page 10 of 24 HC-NIC Page 13 of 27 Created On Mon Feb 29 23:14:30 IST 2016 13 of 27 C/SCA/18100/2015 JUDGMENT 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 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 Page 11 of 24 HC-NIC Page 14 of 27 Created On Mon Feb 29 23:14:30 IST 2016 14 of 27 C/SCA/18100/2015 JUDGMENT 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 wellknown. 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."
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 to acquire the land upon expiry of the period specified therein viz. ten years from the date of Page 12 of 24 HC-NIC Page 15 of 27 Created On Mon Feb 29 23:14:30 IST 2016 15 of 27 C/SCA/18100/2015 JUDGMENT 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:-
"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."
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 Page 13 of 24 HC-NIC Page 16 of 27 Created On Mon Feb 29 23:14:30 IST 2016 16 of 27 C/SCA/18100/2015 JUDGMENT 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 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.
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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 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."
18. The Apex Court in the case of Chairman, Indore Vikas Pradhikaran (supra) has taken a similar view. The Apex Court in the case of Bhikhubhai Vithhalbhai Patel and Ors., (supra) has observed thus:-
"4. The appellants challenged re-reservation of the lands for South Gujarat University on various grounds which ultimately culminated in the judgment of this court in Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others. This court in clear and categorical terms laid down that Section 21 of the Act may impose statutory obligations on the part of the State and the appropriate authority to revise the development plan but under the grab of exercising the power to revise the development plan #the substantial Page 15 of 24 HC-NIC Page 18 of 27 Created On Mon Feb 29 23:14:30 IST 2016 18 of 27 C/SCA/18100/2015 JUDGMENT right conferred upon the owner of the land or the person interested therein# cannot be taken away. It is observed :
# Para 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.
13. The appellants filed writ petitions in the High Court of Gujarat challenging the action re-reserving the land in the draft revised development plan for the same purpose namely education complex of South Gujarat University. The lis ultimately culminated in the judgment of this Court in Bhavnagar University (supra).
This court held that :
(i) Section 21 of the Act does not and cannot mean that 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.
(ii) It is further held that the statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.
(iii) It is further held that inspite of statutory lapse of designation of the land, the State is not denuded of its power of eminent domain under the general law, namely, the Land Acquisition Act in the event an exigency arises therefore.
14. The State Government unmindful of and undaunted by the judgment of this court proposed to modify the draft revised development plan already submitted by the authority in purported exercise of the power conferred by the proviso to sub-clause (ii) of clause (a) of sub- section (1) of Section 17 of the Act by designating the land for educational use under Section 12(2)(o) of the Act. The Government having considered the objections issued final notification dated 28th September, 2004 confirming modifications proposed in the preliminary notification."
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19. Recently, the Apex Court while considering similar case under Section 127 of the MRTP Act, which is almost para materia to Section 20 of the Act, being Civil Appeal No.1086 of 2015 in the case of Godrej & Boyce Manufacturing Co. Ltd. Vs. State of Maharashtra & Ors., has observed thus:-
"15. Having heard the learned senior counsel on behalf of both the parties and with reference to the abovesaid rival factual and legal contentions, we have carefully examined the same keeping in view the undisputed facts involved in this case. It is an undisputed fact that the respondent No. 1 has reserved the land in question for the Development Plan under the provisions of Section 127 of the MRTP Act for the acquisition of the land in favour of Ministry of Railways for laying additional railway track between "Thane and Kurla". It would be apposite to extract Section 127 of the MRTP Act for better appreciation of the claim of the parties, which deals with lapsing of reservation:-
"127. Lapsing of reservations-If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; 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 reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan."Page 17 of 24
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16. It is also an undisputed fact that after 10 years, notice dated 4.9.2002 served by the appellant under Section 127 of the MRTP Act upon the respondent No.1 stating that if, the reserved land was needed for the notified purpose, Railway department may acquire the same by adopting acquisition proceedings, but if the same is not acquired, the clarification to that effect be issued. Thereafter, on 3.3.2003 the period of 6 months as prescribed under the provision of Section 127 of the MRTP Act, after issuance of the above notice by the appellant and served on the respondent No.1, was also lapsed long back. Therefore, the reservation of the land in favour of the Railway was deemed to be released under the above said provision of the MRTP Act. The respondent No. 2- Ministry of Railways informed the Urban Development Department of the State Government on 1.11.2004 stating that there was no proposal for acquisition of the land in the Railways in the near future, is evident from the undisputed fact of the correspondence made between the Ministry of Railways and the Urban Development Department of the State Government, which would clearly go to show that the land reserved even after 10 years and on expiry of service of notice of 6 months there was no intention on the part of the State Government to acquire the reserved land for the purpose reserved in favour of the Railways department to form the Railway tracks between "Thane and Kurla". In that view of the matter, the land reserved for the purpose under Section 127 of the MRTP Act, is lapsed and the appellant is entitled for developing the land as it likes. The State Government instead of clarifying to the notice issued by the appellant, has proceeded further to initiate proceedings under Section 37 of the MRTP Act, proposing the modification in the Development Plan by deleting Railway reservation and adding reservation for Development Plan Road. Section 37(1) of the MRTP Act, which deals with modification of Final Development Plan reads thus:-
"37.Modification of final Development Plan -
(1) Where a modification of any part of or any proposal made in, a final Development Plan is of such a nature that it will not change the character of such Development Plan, the Planning Authority may, or when so directed by the State Government shall, within sixty days from the date of such direction, publish a notice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed Page 18 of 24 HC-NIC Page 21 of 27 Created On Mon Feb 29 23:14:30 IST 2016 21 of 27 C/SCA/18100/2015 JUDGMENT modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction. 1A) If the Planning Authority fails to issue the notice as directed by the State Government, the State Government, shall issue the notice and thereupon, the provisions of sub-section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority."
By a careful reading of the provisions of Sections 127 and 37(1) of the MRTP Act, which are extracted as above abundantly make it clear that the State Government is not empowered to delete the reservation of the land involved in this case from Railway use and to modify the same for Development Plan Road in the Development Plan after expiry of 10 years and 6 months notice period was over as the appellant has acquired the valuable statutory right upon the land and the reservation of the same for the proposed formation of Railway track was lapsed long back. Further the respondent No. 2 vide its letter dated 1.11.2004 has stated that there is no proposal for acquisition of land for the purpose of which it was reserved.
Section 127 of the MRTP Act, which fell for consideration before the three Judge Bench of this Court in the case of Shrirampur Municipal Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher & Ors. wherein the contention of the appellant that the majority judgment in the case of Girnar Traders (2) v. State of Maharashtra3 need to be considered by larger Bench as the same is contrary to Section 127 and Municipal Corpn. Of Greater Bombay v. Hakimwadi Tenants' Asson.4 case, was rejected. The Court opined that the same is not contrary to Section 127 of the MRTP Act and further held that there is no conflict between the judgments of the two-Judge Bench in Hakimwadi Tenants' Asson. (supra) and the majority judgment in Girnar Traders (2) (supra) case. Further, the three Judge Bench judgment in Shrirampur Municipal Council, Shrirampur (supra) at paras 45 and 46 supported the observation of Constitution Bench in Girnar Traders (3) v. State of Maharashtra5 case relating to Section 127 of the MRTP Act, which read thus:-
"45. In our view, the observations contained in para 133 of Girnar Traders (3) unequivocally Page 19 of 24 HC-NIC Page 22 of 27 Created On Mon Feb 29 23:14:30 IST 2016 22 of 27 C/SCA/18100/2015 JUDGMENT support the majority judgment in Girnar Traders (2).
46. As a sequel to the above discussion, we hold that the majority judgment in Girnar Traders (2) lays down correct law and does not require reconsideration by a larger Bench..."
From the above, it is clear that the majority view in Girnar Traders (2) (supra) is held to be good law. Therefore, the case of Girnar Traders (2) (supra) is binding precedent under Article 141 of the Constitution of India upon the respondent No.1. The relevant paragraph 133 from Girnar Traders (3) is extracted hereunder :-
"133. However, in terms of Section 127 of the MRTP Act, if any land reserved, allotted or designated for any purpose specified is not acquired by agreement within 10 years from the date on which final regional plan or final development plan comes into force or if a declaration under sub-section (2) or (4) of Section 126 of the MRTP Act is not published in the Official Gazette within such period, the owner or any person interested in the land may serve notice upon such authority to that effect and if within 12 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 reservation, allotment or designation shall be deemed to have lapsed and the land would become available to the owner for the purposes of development. The defaults, their consequences and even exceptions thereto have been specifically stated in the State Act. For a period of 11 years, the land would remain under reservation or designation, as the case may be, in terms of Section 127 of the MRTP Act (10 years + notice period)."
In view of the above said statement of law declared by this Court in the cases referred to supra, after adverting to the judgment of majority view in Girnar Traders (2) case (supra) is accepted in Shrirampur Municipal Council, Shrirampur (supra), wherein it is held that the Girnar Traders (2)(supra) case is not conflicting with the Hakimwadi Tenants' Asson. Case (supra), the statement of law laid down in the above referred cases are aptly applicable to the fact situation. Therefore, we have to hold that the impugned notification is bad in law and liable to Page 20 of 24 HC-NIC Page 23 of 27 Created On Mon Feb 29 23:14:30 IST 2016 23 of 27 C/SCA/18100/2015 JUDGMENT quashed. The High Court has not examined the impugned notification from the view point of Section 127 of the MRTP Act and interpretation of the above said provision made in the case of Girnar Traders (2) (supra), therefore, giving liberty to the appellant by the High Court to file objections to the proposed notification is futile exercise on the part of the appellant for the reason that the State Government, once the purpose the land was reserved has not been utilized for that purpose and a valid statutory right is acquired by the land owner/interested person after expiry of 10 years from the date of reservation made in the Development Plan and 6 months notice period is also expired, the State Government has not commenced the proceedings to acquire the land by following the procedure as provided under Sections 4 and 6 of the repealed Land Acquisition Act, 1894. Therefore, the land which was reserved for the above purpose is lapsed and it enures to the benefit of the appellant herein. Therefore, it is not open for the State Government to issue the impugned notification proposing to modify the Development Plan from deleting for the purpose of Railways and adding to the Development Plan for the formation of Development Plan Road after lapse of 10 years and expiry of 6 months notice served upon the State Government.
17. In view of above, the order passed by the High Court as well as the impugned notification issued by the State Government are vitiated in law and liable to be set aside and quashed and we order accordingly.
18. The appeal is allowed. The impugned order is set aside and consequently Rule issued. The impugned notification dated 5.8.2008 is also quashed as the period of 10 years from the date of reservation in the Development Plan and 6 months notice served by the appellant on the respondent No. 1 is also over, the reservation of the land is lapsed. No costs."
20. The Division Bench of this Court following the ratio laid down in the case of Bhikhubhai Vithhalbhai Patel and Ors. (supra), has taken similar view in Letters Patent Appeal No.112 of 2009 in Special Civil Application No.13731 of 2005.
21. Following and applying the ratio laid down in the case of Bhavnagar University (supra), the Division Bench Page 21 of 24 HC-NIC Page 24 of 27 Created On Mon Feb 29 23:14:30 IST 2016 24 of 27 C/SCA/18100/2015 JUDGMENT of this Court in Letters Patent Appeal No.1244 of 2015 has observed thus:-
"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.
22. The contention raised by Mr.P.G.Desai, learned Senior Counsel for the respondent authorities as regards the amendment in Section 20(1) of the Act does not take the case of the respondents any further. No amendment is made in sub section (2) of Section 20 of the Act. Section 20(1) as amended by Amendment Act, 2014 only provides for three different modes of acquisition. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of Bhavnagar University (supra), wherein in paragraph No.41, it has been observed thus:-
"41. There is another aspect of the matter which cannot be lost sight of. Despite statutory lapse of designation of the land, the State is not denuded of its power of eminent domain under the general law, namely, the Land Acquisition Act in the event any exigency arises thereof."
23. In light of the binding decisions of the Apex Court as well as of this Court, the contention raised by learned counsel for SUDA that the appropriate authority has Page 22 of 24 HC-NIC Page 25 of 27 Created On Mon Feb 29 23:14:30 IST 2016 25 of 27 C/SCA/18100/2015 JUDGMENT already initiated proceedings to revise the development plan and therefore, the petitions are premature and deserve to be dismissed.
24. In light of the decision of the Apex Court in the case of Bhavnagar University (supra), as reservation has lapsed, action of re-reserving the land for the same purpose in the second revised development plan that too after notice under Section 20(2) of the Act itself, is bad and illegal. The lands of citizens cannot be freezed eternally and even though the law is settled, the petitioners cannot be asked to wait when re-reservation itself would be bad.
25. As held by the Division Bench of this Court in the case of Palitana Sugar Mill (P) Ltd. (supra), the words "reservation" and "designation" are inter-changeable and therefore, considering the facts and circumstances in both the petitions, failure to acquire the lands within stipulated time would render reservation nugatory and it lapses as per the provisions of Section 20(2) of the Act. Amendment made in Section 20(1) of the Act would not change position at all as there is no amendment in Section 20(2) of the Act and therefore, only because of Section 20(1) of the Act is substituted by amendment of 2014, legal fiction of lapsing of reservation would not stand altered and the ratio laid down in the binding decisions of the Apex Court as well as this Court shall apply in the present case also.
26. It is clarified that in all these petitions, challenge is to the reservation made in the final revised development plan of SUDA, which has been dealt with in detail as hereinabove. It is further clarified that the Page 23 of 24 HC-NIC Page 26 of 27 Created On Mon Feb 29 23:14:30 IST 2016 26 of 27 C/SCA/18100/2015 JUDGMENT contention raised in some of the petitions relating to the town planning scheme is not the subject matter of these petitions and therefore, the same is not necessary to be dealt with by this Court in this group of petitions. As held by the Apex Court in the case of Ahmedabad Municipal Corporation & Anr. Vs. Ahmedabad Green Belt Khedut Mandal & Ors. [2014 (3) GLR 2516], said challenge is premature as the town planning scheme is still at the stage of draft scheme and it would be open for the parties to take appropriate recourse and steps as provided under the provisions of the Act and the Rules and the present judgment only relates to the lapsing of reservation in the final development plan.
Resultantly, the petitions are allowed. Reservation in the lands in question in each petition is hereby declared to have been lapsed. Rule is made absolutely to the aforesaid extent in each petition. No costs.
(R.M.CHHAYA, J.) Suchit Page 24 of 24 HC-NIC Page 27 of 27 Created On Mon Feb 29 23:14:30 IST 2016 27 of 27