Gujarat High Court
Vrundavan Party Plot & vs State Of Gujarat & 3 on 25 March, 2014
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi, Mohinder Pal
C/LPA/112/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 112 of 2009
In
SPECIAL CIVIL APPLICATION NO. 13731 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Sd/-
and
HONOURABLE MR.JUSTICE MOHINDER PAL Sd/-
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
1 YES; 2 to 5 NO
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VRUNDAVAN PARTY PLOT & 1....Appellant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR RR MARSHALL, Senior Advocate, with MR ASHISH H SHAH, ADVOCATE
for the Appellant(s) No. 1 - 2
MR RASHESH RINDANI AGP for the Respondent(s) No. 1
MR SHALIN MEHTA, Senior Advocate, with MR HS MUNSHAW, ADVOCATE
for the Respondent(s) No. 2 - 3
MR MD PANDYA, ADVOCATE for the Respondent(s) No. 2
Page 1 of 19
C/LPA/112/2009 JUDGMENT
MR KAIVAN PATEL, Advocate with MR MITUL K SHELAT, ADVOCATE for the
Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 25/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The appellants/original petitioners are before this Court being aggrieved by judgment and order dated 24.01.2007 passed by learned single Judge in SCA No.13731 of 2006, whereby the learned single Judge is pleased to set out the circumstances upto para 12, and the observation in para 13 is as under:
"13. Under the circumstances, the petition is not entertained at this stage. However, it is directed that if the petitiner files objection to the revised development plan, the same may be considered by the authority in accordance with law in any case, prior to the taking final decision on the revised development plan. Disposed of accordingly."
2. Heard learned senior advocate Mr.Marshall with Mr.Ashish H.Shah for the appellants; learned AGP Mr.Rashesh Rindani for respondent No.1 State; learned senior advocate Mr.Shalin Mehta with Mr.H.S.Munshaw for respondent No.3 Gujarat State Road Transport Corporation; learned advocate Page 2 of 19 C/LPA/112/2009 JUDGMENT Mr.M.D.Pandya for respondent No.2 Vadodara Urban Development Authority; and learned advocate Mr.Kaivan Patel with Mr.Mitul K.Shelat for respondent No.4 M.S.University.
3. Learned senior advocate for the appellants invited the attention of the Court to the judgment and order passed by the learned single Judge and invited the pointed attention to the contents of paragraph 5 of the judgment and order, which reads as under:
"5. It was submitted by the learned counsel appearing for the petitioner that in view of the principles laid down by Division Bench of this Court in its decision in the case of Palitana Sugar Mill Pvt. Ltd & Anr. Vs. State of Gujarat & Ors. reported at 2001(4) GLR, 3049, the reservation would lapse if the acquisition proceedings are not undertaken by the acquiring body pursuant to the development plan and he further submitted that if the reservation has lapsed under the guise of the Revised Development Plan, it is not open to the Authority to contemplate the same reservation or the reservation for different purpose and therefore, he submitted that this Court may interfere and entertain the petition............"
4. Learned senior advocate for the appellants then invited the attention of the Court to the observations made by the learned single Judge in para 6, the relevant part of which Page 3 of 19 C/LPA/112/2009 JUDGMENT reads as under:
"6. ......Mr. Pandya, learned counsel appearing for the Development Authority in addition to the aforesaid declaration, by relying upon the another subsequent decision of the Division Bench of this Court (Coram:J.M. Panchal & Abhilasha Kumari,J.J.) dated 15.11.2006 in Letters Patent Appeal No. 1452 of 2005, contended inter alia that the designation is different than the reservation. He further submitted that the decision of the Palitana Sugar Mill (Supra) upon which the relevance (sick) is placed by the learned counsel for the petitioner came to be considered by the Division Bench of this Court and the decision in the case of Palitana Sugar Mill is treated as that of laying down the principles that the reservation would lapse if the acquisition has not taken place within the requisite period and it is not a decision to be treated as no other reservation or the designation is permissible......"
He, therefore, submitted that, when the matter is yet to be finalized by the Development Authority, this Court may not entertain the petition.
5. Learned senior advocate for the appellants submitted that, subsequent to the decision of the learned single Judge, the position of law is now clear as laid down by the Hon'ble the Apex Court in the matter of Bhavnagar Page 4 of 19 C/LPA/112/2009 JUDGMENT University v. Palitana Sugar Mill Pvt. Ltd. & Ors. reported in AIR 2003 SC 511.
5.1 Learned senior advocate for the appellants, before inviting the attention of the Court to the decision of the Hon'ble the Apex Court in the matter of Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. (supra), invited the attention of the Court to a decision of a Division Bench of this Court in the very same matter which was the subject-matter of scrutiny before the Hon'ble the Apex Court. The decision of Division Bench of this Court in the matter of Palitana Sugar Mill Pvt. Ltd. vs. State of Gujarat is reported in 2001 (2) G.L.H. 294 and, therefore, learned senior advocate for the appellants invited the attention of the Court to paragraphs 47, 48, 53, 57 and 101, which are reproduced hereunder for ready perusal:
"47. Section 20 which confers a valuable right on the land owner or person interested in it to insist on the authority to acquire the land for the purpose of town planning within a reasonable fixed period of ten years has to be so construed as to allow its operation in a given contemplated situation. The provision contained in Section 20 cannot be construed in a manner that it would seldom be brought into operation or can be never brought into effect as and when the final development plan is made subject of revision under Section 21 of the Act. The object and intention behind on provisions similar to Section 20 to give right to the land owner or person interested in it to serve six Page 5 of 19 C/LPA/112/2009 JUDGMENT months notice to get the land dereserved have been examined by the Supreme Court while interpreting provisions contained in Section 127 of the Maharashtra Town Planning Act in the case of Municipal Corporation of Greater Bombay vs. Dr. Hakim Vadi Tenants Association AIR 1988 SC 233 (supra). In construing the said provision with its manifest object in view it is stated:-
"While the contention of learned counsel .........., it must be borne in mind that the period of six months provided by S. 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 S. 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"
"48. From the reading of subsection (2) of Section 20 what one finds is of utmost importance is the fixation of ten years period which appears to have been so fixed in view of ten years period mentioned in subsection (2) of Section 17. Ten years period both for purposes of Section 17(2) and for subsection (2) of Section 20 is considered by the Legislature to be a reasonable period within which the land designated or reserved for one or more of the purposes mentioned in various clauses of subsection (2) of Section 12, should be acquired and failure to do so furnishes right to the land owner or person interested in it to serve six months notice for acquisition to the authority and get his land freed from the restraints under the Act to enable him to use or develop it according to his legal rights. As held by the Supreme court such a provision aims at striking a balance between the competing claims of the Authorities in the interest of general Page 6 of 19 C/LPA/112/2009 JUDGMENT public and rights of an individual. Provisions of subsection (2) of Section 20 have to be, therefore, given full effect.
They can not be rendered merely paper provisions available to the land owner in rarest of rare cases, such as is contended, where there is not even a proposal for revision of a final development plan within or on expiry of ten years period as specified."
"53. On a careful consideration of the submissions made by counsel for the contending parties, we find it difficult to accept the argument advanced on behalf of the State that within ten years or on expiry of ten years of the original development plan, whenever there is a proposal by issuance of a draft revised final development plan, the land owner would lose his right of getting the land defreezed by serving six months' notice under subsection (2) of Section
20. In making applicable Section 20 of the Act to revision of development plan, in the language of Section 21, the use of expression `so far as may be' is very significant. The words `so far as may be' used in Section 21 for applying to the provisions, Sections 9 to 20 of the Act clearly intends to convey that the provisions of Sections 9 to 20 `in so far as they can be made applicable' 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 ten years, a right created in favour of the land owner to serve six months' notice to get his land dereserved is not nullified by subsequent revision of the plan.......".
"97. We have already held above that even if in the revised development plan under Section 21 the Government chooses to continue to reserve the same land in the earlier Page 7 of 19 C/LPA/112/2009 JUDGMENT final development plan, then also in that case, the consequences which have ensued on expiry of ten years and six months notice period by the land owners under Section 20(2) of the Town Planning Act would not get nullified. For conjoint operation of Section 20 and 21, the latter Section has to be interpreted in a manner so as to make applicable to it provisions of Section 9 to 20, but subject to provisions contained in Section 20(2). If Section 21 is not so interpreted, Section 20(2) would be rendered nugatory and that cannot be held to be a legislative intent in making applicable the provisions of Section 20 to the process of fresh revision of development plan under Section 21. The provisions of Section 20(2) really express intention of the Legislature not to allow reservation of land indefinitely and in perpetuity to the serious prejudice of the land owner, particularly, in cases where acquisition of reserved land is not feasible for want of funds or other reasons by the authorities for whom the reservation is made".
"101. In the result, both Special Civil Applications Nos. 4210 of 1985 and Special Civil Application No. 10108 of 1994 filed on behalf of the land owners are hereby allowed. It is held that the lands reserved for Bhavnagar University, having not been acquired within ten 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 for Bhavnagar University is declared to have been lapsed with all consequential effects under the Town Planning Act of 1976......"
6. Learned senior advocate for the appellants then Page 8 of 19 C/LPA/112/2009 JUDGMENT invited the attention of the Court to a decision of the Hon'ble the Apex Court in the matter of Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. reported in AIR 2003 SC 511 and drew the pointed attention of the Court to paragraphs 32, 33, 35 and 40, which read as under:
"32 .Sub-section (2) of S. 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 S. 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further in the event in 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 ER 587), Lord Asquith, I 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;Page 9 of 19
C/LPA/112/2009 JUDGMENT 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. and another ((1994) 2 SCC
323). See also Indian Oil Corporation Limited v. Chief Inspector of Factories and others etc. ((1998) 5 SCC 738); Voltas Limited, Bombay v. Union of India and others ((1995) Supp 2 SCC 498); Harish Tandon v. Addl. District Magistrate, Allahabad, U.P. and others, ((1995) 1 SCC 537) and G. Viswanathan etc. v. Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras and another ((1996) 2 SCC 353)."
"35. This Court in Municipal Corporation of Greater Bombay's case (supra), in no uncertain terms while construing the provisions of S. 127 of the Maharashtra Regional and Town Planning Act, 1966 held the period of ten years as reasonable in the following words :-
"While the contention of learned counsel appearing for the appellant that the words 'six months from the date of service of such notice' in S. 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 S. 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 S. 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. . . . . . . . ."
". . . . . . .The Act lays down the principles of fixation by Page 10 of 19 C/LPA/112/2009 JUDGMENT providing first, by the proviso to S. 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 sub-section (4) of S. 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 S. 6 and not the market value at the date of the notification under S. 4, and thirdly, by S. 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 plan and for the said Page 11 of 19 C/LPA/112/2009 JUDGMENT purpose Ss. 9 to 20 'so far as may' would be applicable thereto, but thereby the rights of the owners in terms of sub-section (2) of S. 20 are not taken away."
"40. 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."
7. Learned senior advocate for the appellants submitted that, with the aforesaid decision, the controversy about 'designation', 'reservation' and 'reservation for public institutions' does not survive any more.
8. Learned senior advocate for the appellants also invited the attention of the Court to yet another decision of the Hon'ble the Apex Court in the matter of Bhikhubhai Vithalbhai Patel vs. State of Gujarat reported in AIR 2008 SC 1771, wherein the judgment, which was relied upon by the learned single Judge, is reversed by the Hon'ble the Apex Court. Learned senior advocate invited the attention of the Court to paragraphs 4, 12 and 13 of the said judgment, which read as under:
"4. The appellants challenged re-reservation of the Page 12 of 19 C/LPA/112/2009 JUDGMENT 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 others1, 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 garb of exercising the power to revise the development plan "the substantial 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 subsection (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..............."
"12. The appellants filed writ petitions in the High Court of Gujarat challenging the action rereserving the land in the draft revised development plan for the same purpose namely education complex of South Gujarat University. The his 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 Page 13 of 19 C/LPA/112/2009 JUDGMENT must act within the four corners thereof.
(iii) It is further held that in spite 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 therefor.
13. 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."
9. Learned senior advocate for the appellants invited the attention of the Court to certain dates for appreciation of the aforesaid position of law in the present case. Learned senior advocate submitted that it was initially a draft development plan which was dated 22.12.1983 which came into force on 26.01.1984. It was this particular development plan under which acquisition proceedings were not undertaken and, therefore, there was a first revision of that development plan which was undertaken on 25.10.1996. The same was made effective from 26.11.1996. Even after that, the authorities were not able to undertake acquisition proceedings and, therefore, there was a second revision of the development Page 14 of 19 C/LPA/112/2009 JUDGMENT plan which took place on 26.02.2004 and it became effective from 23.11.2006. Learned senior advocate for the appellants invited the attention of the Court to sub-section (2) of section 20 of the Gujarat Town Planning and Urban Development Act, 1979 ("the Act" for short), which reads as under:
"Sec. 20 Acquisition of land.
(1) xxx xxx xxx (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 ( I of 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 acquisitions, the designation of the land as aforesaid shall be deemed to have lapsed."
(emphasis supplied)
10. Learned senior advocate for the appellants submitted that, though the term used in sub-section (2) of section 20 is "designated", but, as observed by the Hon'ble the Apex Court, 'reservation', 'designation' and 'reservation for public institutions' are insignificant and, therefore, any submission made on behalf of the authorities, viz. (a) Area Development Authority or (b) any other authority for the Page 15 of 19 C/LPA/112/2009 JUDGMENT same, that the land was designated, i.e. M.S.University or G.S.R.T.C, are of no consequence and do not make any difference so far as the right of the appellants/original petitioners is concerned.
10.1 Learned senior advocate for the appellants submitted that the Hon'ble the Apex Court in the matter of Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. (supra) has very succinctly drawn a comparison between the rights arising in favour of a person under sub-section (2) of section 20 and the rights of the public at large and has gone to the extent of saying that interpretation of section 20(1) of the Act could not be in a manner which will render sub-section (2) nugatory.
11. Learned senior advocate Mr.Shalin Mehta, appearing for G.S.R.T.C., invited the attention of the Court to the affidavit filed by one Mr.K.L.Bhoya only with a view to reiterate the dates set out in that affidavit-reply and submitted that a limited submission can be made on behalf of the GSRTC that there is delay and laches and on the ground of delay and laches, the appellants/original petitioners should be non-suited. In this connection, learned senior advocate Page 16 of 19 C/LPA/112/2009 JUDGMENT Mr.Mehta emphatically submitted that a suit was to be filed for the same declaration which is sought for by the petitioners in the petition. Even that suit would have been dismissed on the ground of delay and, therefore, under the discretionary jurisdiction of this Court conferred by Article 226 of the Constitution of India, LPA being continuation of the same, the appellants/original petitioners should not get anything which it could not have got by filing a suit.
11.1 The Court is not impressed by the aforesaid submission of learned senior advocate Mr.Mehta for the GSRTC. GSRTC is a beneficiary public body and the matter is decided by the authorities whose action of designating/ reserving the land in favour of a public institution is under challenge and that challenge is required to be appreciated in light of the law laid down by the Hon'ble the Apex Court.
12. Learned AGP Mr.Rindani is not able to dislodge the position of law laid down by the Hon'ble the Apex Court by virtue of the aforementioned judgments and, therefore, any submissions made on behalf of the State authority by the learned AGP do not find favour with this Court and the same are found to be not acceptable.
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C/LPA/112/2009 JUDGMENT
13. Ms.Maya S.Desai, learned advocate appearing for learned advocate Mr.Pandya, who is appearing for Vadodara Urban Development Authority, is also not able to dislodge the position of law laid down by the Hon'ble the Apex Court. Therefore, this Court is of the opinion that the judgment and order passed by the learned single Judge deserves to be quashed and set aside and the relief as prayed for by the appellants/original petitioners deserves to be granted. The appeal is accordingly allowed and the judgment and order passed by the learned single Judge is hereby quashed and set aside. Designation/reservation of land bearing sub-plot No.11, survey No.1, Tikka Nos.9-c, admeasuring 29035 sq. mts. situated in Vadodara Taluka, Dist. Vadodara is declared to have lapsed in view of the provisions of clause (k) of sub- section (2) of section 20 of the Act and the land is ordered to be treated as 'de-reserved'.
14. Learned senior advocate for the appellants/original petitioners invited the attention of the Court to notices dated 10.8.2001 and 22.5.2002 which are well beyond the period of ten years from the first development plan having come into force, i.e. 26.01.1984, after which the first revision came into force on 26.11.1996. Despite service of notices, the Page 18 of 19 C/LPA/112/2009 JUDGMENT authorities did not initiate any action for acquiring the land in question. What is important to note here is that the authorities did not take any action for acquisition of the land till date, which is a factor which has to be taken note of by this Court.
Sd/-
(RAVI R.TRIPATHI, J.) Sd/-
(MOHINDER PAL, J.) (KMGThilake) Page 19 of 19