Gujarat High Court
Decd. Ravjibhai Narsinhbhai Thro' ... vs State Of Gujarat & 3 on 21 December, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/2827/1998 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2827 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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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 or any order made thereunder ?
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DECD. RAVJIBHAI NARSINHBHAI THRO' HEIRS AND L.R.....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR YN OZA, SR ADVOCATE with MR HJ DHOLAKIA, ADVOCATE for the
Petitioner(s) No. 1 - 1.9
MR MANAN MEHTA, AGP for the Respondent(s) No. 1
MS MAYA DESAI, ADVOCATE WITH MR MD PANDYA, ADVOCATE for the
Respondent(s) No. 2
MR SN SHELAT, SR ADVOCATE WITH MR MITUL K SHELAT, ADVOCATE
for the Respondent(s) No. 4
MR PRANAV G DESAI, SR ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
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Date : 21/12/2015
ORAL JUDGMENT
1. Heard Mr. Y. N. Oza, learned Senior Advocate with Mr.H. J. Dholakia, learned advocate for the petitioners, Mr.Manan Mehta, learned AGP for respondent no.1, Ms. Maya Desai, leaned advocate for respondent no.2, Mr. P. G. Desai, learned advocate for respondent no.3 and Shri S. N. Shelat, learned Senior Advocate with Mr. M. K. Shelat, learned advocate for respondent no.4.
2. By way of this petition under Article 226 of the Constitution of India, the petitioners has prayed for the following main reliefs:
"31 (A) to direct the respondents to issue notification for dereserving the land of the petitioners bearing Survey No.109 situated at Nagarwada in the city of Vadodara under the provisions of the Act and permit the petitioners to develop the said land in accordance with law.
31(B)to quash and set aside the notification dated 11/11/1994 for again re-reserving the land of the petitioners bearing Survey No.109 for the purpose of Botanical Garden for M. S. University.
31(C) ... ... ..."
3. Following facts emerge from the record of the petition that:
3.1. The petitioners are owners of land bearing survey no.109 situated in Nagarwada area of city of Vadodara. The land belonging to the petitioners is situated within the area of Page 2 of 17 HC-NIC Page 2 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT Vadodara Urban Development Authority (for short "VUDA"). Vadodara Municipal Corporation, as a local authority, prepared a development plan for the city of Vadodara under the provisions of Bombay Town Planning Act, 1954 and the said development plan was sanctioned by the State Government under the provisions of Bombay Town Planning Act on 21/09/1970 and the said sanctioned development plan came to into force with effect from 01/12/1970. It is the matter of fact that the Gujarat Town Planning and Urban Development Act, 1976 (hereafter referred to as "the Act") came into force with effect from 01/02/1978 and under the provisions of the Act, VUDA came to be constituted. VUDA prepared and published draft development plan on 17/05/1979 and after following procedure as provided under the Act, the State Government sanctioned the final development plant of VUDA vide notification dated 22/02/1983 and the said final development plan came into force from 25/01/1984. It deserves to be noted that in the final development plan so sanctioned, the land in question i.e. survey no.109 admeasuring 10724 sq. mtrs. was reserved under the provisions of Section 12(2)(k) of the Act for respondent no.4-M. S. University for botanical garden.
3.2. It is the matter of record that the land in question so reserved for the purpose of botanical garden for M. S. University was not acquired by the respondents-authorities as provided under Section 20(1) of the Act. The record indicates that the petitioners gave a notice under Section 20(2) of the Act to VUDA on 04/04/1994. The record also indicates that another notice was given by the petitioners to VUDA on 11/10/1994 and 23/10/1996 calling upon VUDA to take steps Page 3 of 17 HC-NIC Page 3 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT as provided under Section 20(2) of the Act.
3.3. It further bornes out from the record of the petition that VUDA issued a notice for revised development plan on 11/11/1993 followed by the resolution dated 20/10/1993 and invited objections and suggestions from the public at large. The record also indicates that the petitioners filed objections on 07/01/1994. It is also a matter of record that the revised development plan was published as provided under Section 15 of the Act on 20/10/1994 and thereafter VUDA submitted the revised draft development plan to the State Government as provided under Section 16 of the Act and ultimately the revised final development plan came to be sanctioned by the State Government vide notification dated 25/10/1996 and revised final development plan came into force on 26/11/1996. The record indicates that in the revised development plan also, the land in question was reserved for the purpose of botanical garden for respondent no.4-M.S. University. At this stage, present petition is filed by the petitioners, inter alia, for the prayers that are prayed for.
4. It deserves to be noted at this stage that during the pendency of this petition before this Court, another revised development plan has been sanctioned by the State Government vide notification dated 18/01/2012 and the said development plan has come into force from the said date. These facts are brought on record by way of an additional affidavit-in-reply filed by respondent no.4. It also deserves to be noted that the land in question stands reserved for the purpose of public institution use for respondent no.4-M. S. University.
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5. Mr. Y. N.Oza, learned Senior Advocate for the
petitioners has raised the following contentions:
5.1. That the respondents authorities have not taken any actions as provided under Section 20(2) of the Act and have not initiated any proceedings for acquiring the land in question and hence the reservation made in the final development plan stands lapsed automatically.
5.2. Mr. Oza, learned Senior Advocate further contended that once the reservation lapses automatically under Section 20(2) of the Act, any further reservation in subsequent revised final development plan is dehors the provisions of the Act and, therefore, the petition deserves to be allowed as prayed for. It was also contended that three notices which were given to VUDA would be in compliance with Section 20(2) of the Act.
5.3. Mr. Oza, learned Senior Advocate appearing for the petitioner further contended that respondent no.4- University has no authority to acquire the land and therefore, the notice was given to VUDA and the same is in compliance with the requirements as provided under Section 20(2) of the Act.
5.4. Mr. Oza, learned Senior Advocate has relied upon the following judgments in support of his contentions:
(1) Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others reported in (2003) 2 SCC 111.
(2) Shrirampur Municipal Council, Shrirampur v.
Sttyabhamabai Bhimaji Dawkher and others reported in Page 5 of 17 HC-NIC Page 5 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT (2013) 5 SCC 627.
(3) State of Maharashtra v. Bhakti Vedanta Book Trust and others reported in (2013) 4 SCC 676.
(4) In the case between Godrej Boyce Manufacturing Co. Ltd. v. State of Maharashtra and others rendered in Civil Appeal No.1086 of 2015 arising out of SLP (C) No.19426 of 2012 dated 21/01/2015.
(5) Judgment of Division Bench of this Court (Coram:Acting Chief Justice Mr. Y. R. Meena and Mr.Justice D. A. Mehta) dated 18/04/2006 in the case between Ramanlal Ratanlal Haribhakti & another v. State of Gujarat & others rendered in LPA Nos. 171 to 176 of 2005.
6. Per contra, Mr. S. N. Shelat, learned Senior Advocate appearing for respondent no.4- M. S. University contended as under:
6.1. That the reservation in favour of respondent no.4-M. S. University does not lapse in facts of this case as the petitioners have not given any notice as provided under Section 20(2) of the Act to respondent no.4, the authority for whom the land in question is reserved in the final development plan.
6.2. It was contended that as stated in the additional affidavit-in-reply by respondent no.4-University, there is no challenge by the petitioners to the reservation which is made in the revised final development plan sanctioned by the State Government on 18/01/2012 and the earlier notification which is challenged by the petitioners in this petition is substituted by notification dated 18/01/2012. On both these grounds, it was submitted that the petition deserves to be dismissed.Page 6 of 17
HC-NIC Page 6 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT 6.3. Mr. Shelat, learned Senior Counsel appearing for the respondent no.4, relying upon the judgment rendered by this Court in the case between Deepakbhai J. Shah v. State of Gujarat reported in 2005 (1) GLR 373, has contended that as no notice was issued to respondent no.4 under Section 20(2) of the Act, hence, the reservation would not lapsed.
6.4. It was contended that the judgments relied upon by learned advocate for the petitioners would not be applicable as no proper notice is given in the present case.
6.5. Mr. Shelat, learned Senior Counsel has also relied upon the judgment dated 16/07/2014 of this Court (Coram: R. H. Shukla, J.) in Special Civil Application No.3992 of 2013 wherein the Court has relied upon the case of Deepakbhai J. Shah (supra).
7. Ms. Maya Desai, learned advocate appearing for respondent no.2-VUDA has adopted the arguments made by Mr. Shelat, learned Senior Advocate for respondent no.4-M. S. University and has further submitted that notice under Section 20(2) of the Act was only given to VUDA whereas the land in question was reserved for respondent no.4-University in the final development plan.
8. Mr. P. G. Desai, learned counsel for respondent no.3 and Mr. Manan Mehta, learned AGP for respondent no.1 have also adopted the arguments made by Mr. S. N. Shelat, learned Senior Counsel appearing for respondent no.4.
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9. No other or further submissions are made by learned advocates appearing for the parties.
10. Before referring to the submissions made by learned advocates appearing for the parties, it would be appropriate to refer and quote the relevant provisions of the Act which reads as under:
"17. Power of State Government to sanction draft development plan.
(1) (a) On receipt of the draft development plan under section 16, the State Government may, be notification,-
(i) sanction the draft development plan and the regulations so received within the prescribed period, for the whole of the area covered by th plan or separately for any part thereof, either without modifications, or subject to such modifications, as it may consider proper;
or
(ii) return the draft development plan and the regulations to the area development authority or, as the case may be, to the authorised officer, for modifying the plan and the regulations in such manner as it may direct:
Provided that, where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary, the State Government may, instead of returning them to the area development authority or, as the case may be , the authorised officer officer under this sub-clause, publish the modifications so considered necessary in the Official Gazette alongwith a notice in the prescribed manner inviting suggestions or objections from any persons with respect to the proposed modifications within a period of two months from the date of publication of such notice; or
(iii) refuse to accord sanction to the draft development plan and the regulations and direct the area development authority or the authorised officer to Page 8 of 17 HC-NIC Page 8 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT prepare a fresh development plan under the provisions of this Act.
(b) Where a development plan and regulations are returned to an area development authority, or, as the case may be, the authorised officer under sub-clause (ii) of clause (a), the area development authority, or, as the case may be, the authorised officer, shall carry out the modifications therein as directed by the State Government and then submit them as so modified tot he State Government for sanction; and the State Government shall thereupon sanction them after satisfying itself that the modifications suggested have been duly carried out therein.
(c) Where the State Government has published the modifications considered necessary in a draft development plan as required under the proviso to sub-
clause (ii) of clause (a), the State Government shall, before according sanction to the draft development plan and regulations, take into consideration the suggestions or objections that may have been received thereto, and thereafter accord sanction to the draft development plan and the regulations in such modified form as it may consider fit.
(d) The sanction accorded under [clause (a)], clause
(b) or clause (c) shall be notified by the State Government in the Official Gazette and the draft development plan together with the regulations so sanctioned shall be called the final development plan.
(e) The final development plan shall come into force on such date as the State Government may specify in the notification issued under clause (d):
(2) Where the draft development plan submitted by an area development authority or, as the case may be, the authorised officer contains any provisions for the reservation of any land for a purpose specified in clause
(b) or clause (n) [or clause (o)] of sub-section (2) of section 12 and such land does not vest in the area development authority, the State Government shall not include the said reservation in the development plan, unless it is satisfied that such authority would acquire the land, whether by agreement or compulsory Page 9 of 17 HC-NIC Page 9 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT acquisition, within ten years from the date on which the final development plan comes into force.
(3) A final development plan which has come into shall, subject to the provisions of this Act, be binding on the area development authority concerned and on all other authorities situated in the area of the development plan.
(4) After the final development plan comes into force, the area development authority concerned may execute any work for developing, re-developing or improving any area within the area covered by the plan in accordance with the proposals contained in the development plan.
20. Acquisition of land.
(1) The development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), [clause (f)], clause (k) clause (n) [or clause
(o)] of sub-section (2) of section 12, may acquire the land either by agreement or under the provisions of the land Acquisition Act, 1894. I of 1894.
(2) If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894 I of 1894, are not commenced within such period, the owner or any person interested in the land my 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.
21. Revision of development plan Atleast once in ten years from the date on which a final development plan comes into force, the area development authority shall revise the development plan after carrying out, if necessary, a fresh survey and the provisions of sections 9 to 20, shall, so far as may be, Page 10 of 17 HC-NIC Page 10 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT apply to such revision."
11. As per the relevant provisions of the Act, a final development plan comes into force as provided under Section 17(3) of the Act. Section 20(1) provides that the area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose enumerated for sub Section 1 of Section 20, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.
12. Sub Section 2 of Section 20 of the Act provides that if the land referred to in sub-section-1 of Section 20 is not acquired within a period of ten years from the date of coming into force of the final development plan and/or if proceedings under the Land Acquisition Act, 1894 are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land. It further provides that if within a period of six months from the date of service of such notice, if the said land is neither acquired nor any steps are commenced for its acquisition, the designation of land shall be deemed to have lapsed. Section 20(2), therefore, clearly stipulates that the owner or person interested has to give notice on the authority who is required to acquire the land. Therefore, in absence of notice to the authority who has to acquire the land, the reservation would not lapse automatically on expiry of the period of six months as provided under Section 20(2) of the Act. In the case on hand, it is an admitted position that after the period of ten years was over, the petitioners have addressed three notices only to Page 11 of 17 HC-NIC Page 11 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT VUDA i.e. Urban/Area Development Authority and not to respondent no.4-M. S. University, the authority for whom the land in question was reserved in the final development plan i.e. the authority who is required to acquire.
13. In the present case, the land in question was reserved in the final development plan as provided under Section 12(2)(k) of the Act and, therefore, the authority who should be put to notice by the owner or any person interested was respondent no.4, Ms. University as respondent no.4 would be authority concerned requiring it to acquire the land as provided under Section 20(2) of the Act.
14. This Hon'ble Court, in the case of Deepakbhai J. Shah (supra), after considering the ratio laid down by the Apex Court in Bhavnagar University (supra), has observed thus:
"24. So far as the Special Civil Applications No.17410 of 2003, 17418/2003 and 17422 of 2003 are concerned, in all the aforesaid three cases the lands in question are designated and reserved for GSCB. It is the case of the petitioners that they have served a notice upon the respondent No.2 VUDA under sub-section (2) of Section
20. However, as stated hereinabove, the notice under sub-section (2) of Section 20 was required to be served upon the "authority concerned", i.e. Gujarat Slum Clearance Board in the present case and the notice served upon the VUDA would not be sufficient for the purpose of attracting lapsing of the designation/reservation in favour of the GSCB, as it cannot be said that serving of a notice upon the VUDA would be sufficient for the purpose of notice as contemplated under sub-section (2) of Section 20. Under the circumstances, as no notice was served upon the GSCB under sub-section (2) of Section 20, the reservation in favour of GSCB is not lapsed and the aforesaid Special Civil Applications fail and are required Page 12 of 17 HC-NIC Page 12 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT to be dismissed in view of the following conclusions;
FINAL CONCLUSIONS:-
i) For the purpose of sub-section (2) of Section 20 of the Gujarat Town Planning & Urban Development Act, 1976, notice is required to be served upon the authority for whose purpose the land is designated/reserved and if the notice is not served upon the "authority concerned", i.e., the authority for whose purpose the land is designated/reserved, then the designation of the land shall not lapse;
(ii) If within six months from the date of service of notice under sub-section (2) of Section 20 requiring the appropriate authority or the "authority concerned" for whose purpose the land is designated/reserved if the steps are commenced for its acquisition (and not the commencement of proceedings under the Land Acquisition Act, 1894) then in that case also the designation of the land will not lapse;
(iii) If the notice under sub-section (2) of Section 20 of the Act is addressed and/or served upon the authority other than those authorities mentioned in Section 112 of the Act, then also it cannot be said that there is sufficient compliance and therefore the designation of the land shall not lapse.
25. Before parting with the judgment it is necessary to observe that considering the fact that the land is designated for Gujarat Housing Board/Gujarat Slum Clearance Board in the final development plan which came into force in the year 1984 and still the lands in question are not used by the GHB/GSCB, the owner of the property is entitled to enjoy the property in any manner he likes subject to reasonable restrictions which may be imposed by the Legislature. A citizen is not supposed to wait for an indefinite period and/or for unreasonable period. However, one another aspect is also required to be considered, and that is 'public interest'. So, one has to strike a balance between 'public interest' and 'private interest'. In the present case, the lands in question are reserved for GHB/GSCB in the final development plan. Under the Statute, Gujarat Housing Board and Gujarat Slum Clearance Board are the bodies Page 13 of 17 HC-NIC Page 13 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT constituted for the purpose of undertaking construction of residential units either for the weaker sections of the society or for middle class families at a cheaper price and i.e. in public interest. Under the circumstances, while striking a balance between 'public interest' and 'private interest', if following directions are issued, it will meet the ends of justice;
(i) It will be open for the respondent No.3 Gujarat Housing Board/Gujarat Slum Clearance Board, as the case may be, to acquire the subject lands and to pay the amount of compensation as per the settled propositions of law, either by agreement or by negotiations or by settlement with the party or by pursuing process of law (Land Acquisition Act), within a period of 12 months, by way of an additional opportunity for accomplishing the object for which, earlier, the land was reserved/designated;
(ii) In the event of non-fulfillment and non- implementation of the directions hereinabove given within the time frame, the result, ipso facto, would be that the reservation of the subject land(reserved land) shall stand lapsed and/or reservation of the land shall stand released."
15. In the case on hand also, the petitioners were required to serve notice as provided under Section 20(2) of the Act upon respondent no.4-M. S. University, therefore, the contention that the reservation in the final development plan would be deemed to have lapsed cannot be accepted. The contention raised by the petitioners to the effect that the notice to VUDA is sufficient compliance of Section 20(2) of the Act, in the facts of this case, deserves to be negatived. Even while agreeing with the contention raised by the learned counsel of the petitioners that as decided by the Hon'ble Apex Court in the case of Bhavnagar University (supra), the reservation would lapsed after ten years on the date on which the final development plan came into force, the fact remains Page 14 of 17 HC-NIC Page 14 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT that the requirement of serving of notice as provided under Section 20(2) is mandatory and, therefore, in absence of any notice to the concerned authority, the reservation would not automatically lapse.
16. The Hon'ble Apex Court, in the case of Bhavnagar University (supra), State of Maharashtra (supra), Shrirampur Municipal Council (supra) as well as in Godrej Boyce Manufacturing Co. Ltd. (supra), has considered the provisions of Section 20(2) of the Act and/or pari materia provisions of Maharashtra Regional and Town Planning Act, 1966. However, in the said case, the requirement of notice was complied with by the petitioner and that the notice was served upon the authority concerned. On that basis, it is held that the reservation shall have deemed to have lapsed, hence the judgments relied upon by learned counsel for the petitioner shall not applicable in this case.
17. At this juncture, it would be appropriate to refer to the provisions of Section 107 of the Act which provides that land needed for the purpose of Town Planning Scheme or a development plan shall be deemed to be land needed for the purpose within the meaning of Land Acquisition Act, 1894. Considering the provisions of Section 12(2)(k) of the Act, the land in question was reserved for the purpose of respondent no.4-University which is University established under the Act known as M. S. University Act and the land acquisition proceedings have to be undertaken by the very said authority for the purpose of acquiring the land which is reserved for concerned authority as provided under Section 20(2) of the Act through the State Government as provided under the Page 15 of 17 HC-NIC Page 15 of 17 Created On Thu Dec 24 01:14:13 IST 2015 C/SCA/2827/1998 JUDGMENT provisions of the Land Acquisition Act, 1894. Once the reservation is made for a authority, the acquisition is to be made by the said authority after following due process of law as provided under the Land Acquisition Act, 1894 and hence it cannot be said that respondent no.4 could not have acquired the land. Respondent no.4-University may be required to acquire the land in question through the State Government or the office of the District Collector, Vadodara. In light of the aforesaid, therefore, the said contention also deserves to be negatived.
18. In light of the aforesaid, therefore, the contention raised by Mr.Shelat, learned senior counsel for respondent no.4- University to the effect that again reservation is provided in the revised development plan sanctioned on 18/01/2012 is not dealt with as the learned counsel has himself relied upon the ratio laid down by this Court in case of Deepakbhai J. Shah (supra).
19. In light of the aforesaid, therefore, following the judgment of this Court in case of Deepakbhai J. Shah (supra), while striking balance between public interest and private interest, similar directions are required to be issued.
19.1. It will be open for respondent no.4-M.S. University to acquire the land in question as provided under Section 20(2) of the Act that by agreement or under the provisions of Land Acquisition Act, 1894 within a period of 12 months by way of an additional opportunity for the purpose for which the land was so reserved/designated in the final development plan.
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19.2. In case if the aforesaid directions are not adhere to within 12 months, the reservation of the land in question shall stand lapsed.
20. In light of the aforesaid, therefore, present Special Civil Application fails. It is declared that designation/reservation of the land in question has not lapsed under Section 20(2) of the Act; subject to above observations, Rule is discharged. No order as to costs.
(R.M.CHHAYA, J.) ila Page 17 of 17 HC-NIC Page 17 of 17 Created On Thu Dec 24 01:14:13 IST 2015