Gujarat High Court
Babubhai Kurjibhai Radadiya vs Surat Municipal Corporation & 2 on 22 August, 2014
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/1263/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1263 of 2011
In
SPECIAL CIVIL APPLICATION NO. 16748 of 2010
With
LETTERS PATENT APPEAL NO. 1481 of 2013
In
SPECIAL CIVIL APPLICATION NO. 7088 of 2008
With
CIVIL APPLICATION NO. 13287 of 2013
In
LETTERS PATENT APPEAL NO. 1481 of 2013
With
LETTERS PATENT APPEAL NO. 1361 of 2013
In
SPECIAL CIVIL APPLICATION NO. 3974 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
================================================================
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
Page 1 of 61
1 of 122
C/LPA/1263/2011 JUDGMENT
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
BABUBHAI KURJIBHAI RADADIYA....Appellant(s)
Versus
SURAT MUNICIPAL CORPORATION & 2....Respondent(s)
================================================================
Appearance:
In LPA No.1263 Of 2011 :
MR RR MARSHALL, SR. ADVOCATE for MR BN PATEL, ADVOCATE for the
Appellant(s) No. 1
MR HARDIK SONI ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 3
MR KAMAL TRIVEDI, SR. ADVOCATE WITH MR HS MUNSHAW,
ADVOCATE for the Respondent(s) No. 2
MR PRASHANT DESAI, SR. ADVOCATE WITH MR KAUSHAL D PANDYA,
ADVOCATE for the Respondent(s) No. 1
In LPA No.1481 Of 2013 :
MR KAMAL TRIVEDI, SR. ADVOCATE WITH MR. HS MUNSHAW,
ADVOCATE for the Appellant(s) No. 1
MR HARDIK SONI ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 4
MR PRASHANT DESAI, SR. ADVOCATE WITH MR DHAVAL G. NANAVATI,
ADVOCATE for the Respondent No. 6
MRS KETTY A MEHTA, ADVOCATE for the Respondents No. 1-2.4, 3
MS ARCHANA R ACHARYA, ADVOCATE for the Respondent No.1-2.4, 3
RULE NOT RECD BACK for the Respondent No.1, 2.1-2.4, 3-5
In LPA No.1361 Of 2013 :
MR KAMAL TRIVEDI, SR. ADVOCATE WITH MR. HS MUNSHAW
ADVOCATE for the Appellant(s) No. 1
MR HARDIK SONI ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 3-4
MR RS SANJANWALA WITH MR APURVA R KAPADIA, ADVOCATE for the
Respondents No.1-2
===========================================================
Page 2 of 61
2 of 122
C/LPA/1263/2011 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 22nd & 25th August 2014
ORAL JUDGMENT
(PER : H ONOURABLE MR.JUSTICE KS JHAVERI)
1. Does a land "reserved" by the area development authority for a public purpose automatically gets de reserved under the provisions of Section20(2) of The Gujarat Town Planning and Urban Development Act, 1986 on expiry of ten years from the date of coming into force of the final development plan or if the proceedings under the Land Acquisition Act, 1894 are not commenced within such period is the short question that has come up for our consideration in this bunch of Letters Patent Appeals. In other words, these appeals relate to the validity, applicability and issues of interpretation of Sections - 20 & 21 of The Gujarat Town Planning and Urban Development Act, 1986 (for short, "the TP Act").
2. Since these Appeals involve common questions on law and facts, they are decided by this common judgment.
3. LPA No.1263 of 2011 arises out of the judgment and order passed by the learned Single Judge in Special Civil Application No.16748 of 2010 dated 13.06.2011 whereby, Page 3 of 61 3 of 122 C/LPA/1263/2011 JUDGMENT the petition is dismissed and it was held that the area development authority is empowered to continue reservation under the provisions of Sections - 20 & 21 the TP Act. 3.1 LPA No.1481 of 2013 has been preferred against the judgment and order passed by the learned Single Judge in Special Civil Application No.7088 of 2008 dated 07.05.2013 whereby, the petition was allowed and it was held that reservation is deemed to have lapsed, upon failure of the authority to acquire the land or to commence steps for acquiring them within six months of service of notice by the landholder under subsection (2) of Section20 of the TP Act.
3.2 LPA No.1361 of 2013 is filed against the judgment and order passed by the learned Single Judge in Special Civil Application No.3974 of 2010 dated 18.07.2013 whereby, the petition was allowed and the principle rendered in SCA No.7088 of 2008 has been reiterated.
4. As similar factual and legal issues are involved in these cases, for convenience, LPA No.1263 of 2011 is taken as the lead case.
Page 4 of 61
4 of 122
C/LPA/1263/2011 JUDGMENT
The appellantoriginal petitioner is the owner of the land bearing Survey No. 57P (57/2) of Village Runch, Taluka & District Surat. The said land came to be included in the Development Plan of respondentSurat Urban Development Authority (for short, "the SUDA"). The principal Development Plan of SUDA was sanctioned in the year 1986. It was revised by SUDA under the provisions of Section21 of the Act and the draft revised Development Plan was submitted u/s.16 of the TP Act in the year 1996, in which the land under reference was proposed for reservation for office building of "post and telegraph". The respondentState Government proposed certain modifications in the draft Development Plan submitted by SUDA in the year 1996 and invited suggestions and objections on the proposed modifications by Notification which was published in the Gujarat Government Gazette Extraordinary on 17.05.2001.
4.1 It appears that by Modification No.93 of the said Notification, the State Government proposed to delete the said reservation and designate the land under reference "for residential use". It may be noted that it was only a proposal of the State Government, on which the objections and suggestions were invited from the general public. Pursuant Page 5 of 61 5 of 122 C/LPA/1263/2011 JUDGMENT to the objections and suggestions so received on the proposed modifications, the State Government sanctioned the draft revised Development Plan of SUDA under the provisions of Section17(1)(c) of the TP Act, vide Notification dated 02.09.2004. 15th September, 2004 was fixed as the date on which the Revised Final Development Plan was to come into force. By the said Notification dated 02.09.2004, the State Government decided to continue reservation on the land under reference for "post and telegraph". 4.2 It appears that on a proposal sent by the SUDA, the State Government made variations in the Development Plan, by which the land under reference was reserved for "public purpose for Surat Municipal Corporation" instead of "Office building for Post and Telegraph", vide Notification dated 07.09.2009 issued u/s.19 of the TP Act. The respondent Surat Municipal Corporation called the owner of land for negotiation u/s.77 of the Bombay Provincial Municipal Corporations Act (for short, "the BPMC Act") for acquisition of the land in question. The landowner made representation on 13.05.2010 against the Notice whereby, he was asked to remain present for negotiations. The land owner remained present for negotiation u/s.77 of the BPMC Act and showed his unwillingness to negotiate about the Page 6 of 61 6 of 122 C/LPA/1263/2011 JUDGMENT land in question. Thereafter, the captioned writ petitions came to be filed before this Court, which came to be dismissed by the learned Single Judge, by way of the impugned judgment and orders.
5. We have heard learned Senior Advocate Mr. R.R. Marshall appearing for Mr. B.N. Patel for the appellant in LPA No.1263 of 2011, Mr. Kamal B. Trivedi learned Senior Advocate appearing with Mr. HS Munshaw for SUDA, Mr. Prashant Desai learned Senior Advocate appearing with Mr. Kaushal Pandya for Surat Municipal Corporation, Mrs. Ketty A. Mehta learned advocate appearing for the original landowners in LPA No.1481 of 2013, Mr. R.S. Sanjanwala learned advocate appearing with Mr. Apurva Kapadia for the landowners in LPA No.1361 of 2013 and Mr. Hardik Soni learned AGP for the respondentState Government.
6. Mr. R.R. Marshall learned Senior Advocate appearing for Mr. B.N. Patel for the appellant submitted that the lands of the appellantoriginal petitioner were placed in reservation "for post and telegraph" in the final development plant by Notification dated 31.01.1986 and since that date onwards, the lands continued under reservation and were not acquired by the development authority nor were they Page 7 of 61 7 of 122 C/LPA/1263/2011 JUDGMENT released from acquisition. The Government of Gujarat issued another Notification dated 07.09.2009 whereby, after a lapse of about 23 years, the lands were released from reservation "for post and telegraph" but, were once again reserved "for the purpose of Surat Municipal Corporation"
(for short, "the SMC").
6.1 It is submitted by the learned Senior Advocate for the petitioner that the lands in question could not have been kept under reservation for a period beyond Ten years and the bar of Section 20 of the TP Act would apply. It is submitted that if after so many years, the Government itself dereserves the lands from the purposes "of post and telegraph", it was no longer open for it to rereserve it for SMC. In support of the above submission, reliance is placed on the following decisions;
I. Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd.
and others, AIR 2003 SC 511 [ (2003) 2 SCC 111]. In Paras - 5, 32 & 34, the Apex Court observed as under;
"5. On or about 3.3.1986 a development plan was finally published in terms of the provisions of the said Act, and the period of 10 years therefrom lapsed on Page 8 of 61
8 of 122 C/LPA/1263/2011 JUDGMENT 2.3.1996. A revised Development plan however came into being on 20th February, 1996. It is not in dispute that respondents who claim ownership of the lands in question issued notices in terms of subsection 2 of Section 20 of the said Act, asking the State Government to acquire the properties in terms thereof.
32. Subsection (2) of Section 20, however, carves out an exception to the exercise of powers by the State as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under subsection (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.
34. The relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse."
Page 9 of 61
9 of 122
C/LPA/1263/2011 JUDGMENT
II. Bhikubhai Vithalbhai Patel and others v. State of Gujarat and another, AIR 2008 SC 1771 [2008 (4) SCC 144]. In Paras - 33, 35 & 37, the Apex Court observed as under;
"33. The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute.
35. Be that as it may, the impugned preliminary notification itself does not reflect formation of any opinion by the State Government that it had become necessary to make substantial modifications in the draft development plan and, for that reason, instead of returning in the plan, decided to publish the modifications so considered necessary in the Official Gazette along with the notice inviting suggestions or objections with respect to the proposed modifications. It is very well settled, public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the Page 10 of 61
10 of 122 C/LPA/1263/2011 JUDGMENT decision making authority. Public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (See Gordhandas Bhanji and Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi).
37. On consideration of the facts and the material available on record, it is established that the State Government took the action proposing to make substantial modifications to the plan without forming of any opinion, which is a condition precedent for the use of power under proviso to Section 17(1)(a)(ii). The power, to restrict the use of land by the owners thereof, is a drastic power. The designation or reservation of the land and its use results in severe abridgment of the right to property. Statutory provisions enabling the State or its authorities to impose restrictions on the right to use one#s own land are required to be construed strictly. The legislature has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Section 17 and more particularly the proviso to Section 17(1)(a) (ii) prescribes some of the conditions precedent for the exercise of power. The order proposing to make substantial modifications, in breach of any one of those conditions, will undoubtedly be void. On a successful showing the order proposing substantial modifications and designating the land of the appellants for educational use under Section 12 (2) (o) of the Act has been made without the Statement Government applying its mind to the aspect of necessity or without forming an honest opinion on that aspect, it will, we have no doubt, be void."
Page 11 of 61
11 of 122
C/LPA/1263/2011 JUDGMENT
6.2 Learned Senior Advocate Mr. Marshall further submitted that it was an absolute arbitrary exercise of power on the part of the authority to keep an individual's valuable land under reservation for a period of almost 24 years without doing anything. It was submitted that the "right to property" has been recognized as an important constitutional and human right. Therefore, the action of the respondent was clearly violative of the constitutional and human rights of the appellant. In support of the above submission, reliance is placed on the following decisions; I. In P.T. Munichikkanna Reddy and others v. Revamma and others, 2007 (6) SCC 59, the Apex Court held that the "right of property" is now considered to be not only a constitutional or statutory right but also a human right. Human rights have been historically considered in the realm of individual rights such as right to health, right to livelihood, right to shelter and employment, etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension.
II. Bharat Petroleum Corporation Ltd. v. Maddula Page 12 of 61 12 of 122 C/LPA/1263/2011 JUDGMENT Ratnavalli and others, 2007 (6) SCC 81. In Paras - 26 & 29, the Apex Court observed as under;
"26. Reasonableness and nonarbitrariness are the hallmarks of an action by the State. Judged from any angle, the action on the part of the appellant does not satisfy the test of fairness or unreasonableness. It being wholly arbitrary cannot be sustained.
29. Right of property although is not a fundamental right, nonetheless remains a constitutional right and any expropriatory legislation must be construed strictly. (See Hindustan Petroleum Corp. Ltd. v. Darius Shahpur Chennai.)"
III. Chandigarh Housing Board v. MajorGeneral Devinder Singh (Redt.) and another, (2007) 9 SCC 67. In Para11, the Apex Court observed as under;
"11. Right to acquire a property although is not a fundamental right but, is a constitutional and human right. Before a person can be deprived of his right to acquire property, the law and / or a contract must expressly and explicitly state so."
IV. In N. Padmamma and others v. S. Ramakrishna Reddy and others, 2008 (15) SCC 517 the Apex Court held Page 13 of 61 13 of 122 C/LPA/1263/2011 JUDGMENT that "right of property" is a human right as also a constitutional right and the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view the provisions of Article 300A, must be strictly construed. 6.3 It is submitted by learned Senior Advocate Mr. Marshall that Notification dated 02.09.2004 was issued without any application of mind. Before issuing the impugned Notification, the Government had not arrived to any proper satisfaction, based on relevant materials, that it was necessary to dereserve the lands "for the purposes of post and telegraph" and fresh rereserve it "for the purpose of SMC". It is submitted that the details as to on what basis the lands were rereserved was not even reflected in the affidavitinreply filed by the State Government. Therefore, the entire exercise was without any application of mind and deserves to be set aside. In support of this submission, reliance is placed on the decision rendered in Bhikubhai Vithalbhai Patel's case (supra) wherein, it is held that before issuing the Notification for reservation, formation of an opinion is necessary. It was also submitted that it makes no difference whether the variation is under Section 17 or 19 of Page 14 of 61 14 of 122 C/LPA/1263/2011 JUDGMENT the TP Act since the exercise of powers u/s.19 of the TP Act would apply with greater force. It would also make no difference if the variation was by the State itself or at the instance of development authority.
6.4 It was also submitted by learned Senior Advocate Mr. Marshall that all exercises undertaken by the State should stand the test of reasonableness. If they were unreasonable, they could be considered as arbitrary and the Court exercising jurisdiction under Article 226 of the Constitution may junk such arbitrariness. It is submitted that reserving the lands as far back as on 31.01.1986 and robbing the appellantpetitioner of the bona fide use of the same and then against releasing it from reservation and rereserving it as on 07.09.2009, without hearing the appellantpetitioner, is unreasonable and bad in law.
6.5 Mr. Marshall has lastly submitted that the reservation merely states "public purpose of SMC". It does not indicate what "public purpose". It is submitted that even the affidavitinreply of the SMC does not state as to for what public purpose, the SMC requires the lands in question. Hence, the entire exercise of reservation suffers from the vice of vagueness. He, therefore, submitted that the appeal Page 15 of 61 15 of 122 C/LPA/1263/2011 JUDGMENT filed by the appellantoriginal petitioner deserves to be allowed.
7. Mr. Prashant Desai learned Senior Advocate appearing with learned advocates Mr. Dhaval Nanavati and Mr. Kaushal Pandya for respondentSurat Municipal Corporation drew our attention to different provisions of the TP Act, particularly, Sections - 9, 17, 19, 20 & 21. It is submitted that Section 20(2) of the TP Act provides that if the land referred to in subsection (1) of Section 20 is not acquired by agreement within a period of 10 years from the date of coming into force of the final development plan or if the proceeding under the Land Acquisition Act are not commenced, the person interested may serve the notice requiring the authority to acquire the land and if within 6 months from the date of service of such notice the land is not acquired or not steps are commenced for acquisition, the designation of the land as aforesaid shall be deemed to have lapsed.
7.1 Learned Senior Advocate Mr. Desai submitted that Section 21 provides that at least once in 10 years from the date on which the final development plan comes into force, the area development authority shall revise the development Page 16 of 61 16 of 122 C/LPA/1263/2011 JUDGMENT plant and the provisions of Sections 9 to 20 of the TP Act shall be applied to such revision. Therefore, after the period of 10 years when the revision takes place, all the provisions will be applicable, viz. (i) to prepare of draft development plan, (ii) to invite objections and suggestions and ultimately, to send draft development plant for sanction u/s.17 of the TP Act, (iii) the revised draft development plant is to be sanctioned u/s.17 and thereby, clause (d) and (e) will be made applicable and it will become the final development plan.
7.2 It is contended by learned Senior Advocate Mr. Desai that Section 20 of the TP Act speaks about the final development plan and it does not speak about the first final development plan. In the instant case, the revised final development plan was sanctioned u/s.17 of the TP Act and the Notification was issued on 02.09.2004 and the date specified was 15.09.2004. Therefore, once the revised final development plan is sanctioned u/s.17 of the TP Act, it will have the same effect of Section 20 of the TP Act. 7.3 It is further contended by learned Senior Advocate Mr. Desai that Section 20 of the TP Act provides for giving of a notice in respect of the final development plan and not in Page 17 of 61 17 of 122 C/LPA/1263/2011 JUDGMENT respect of draft development plan and therefore, if the revised draft development plan is under preparation and in the meanwhile, the notice is given and the acquisition proceedings are not initiated, the deeming provision will come into force under subsection (2) of Section 20. It is submitted that if the notice is given after the revised final development plan is sanctioned, then, in that case, the deeming provision will not be applicable before completion of 10 years. Once the revised draft development plan is sanctioned u/s.17 of the TP Act, the earlier final development plant does not remain and revised final development plan will come into force. The life of the earlier final development plan will come to an end and therefore, the period of 10 years, as specified in subsection (2) of Section 20 will commence from the date of the sanction of the revised final development plan and not on the date of the original final development plan.
7.4 Learned Senior Advocate Mr. Desai submitted that till the revised final development plan is sanctioned, the development plan would continue to be in operation, as has been held in the case of Ahmedabad Municipal Corporation v. Madhuriben A. Parikh, 1995 (2) GLR 1832. It was, therefore, submitted that the respondentauthority has not Page 18 of 61 18 of 122 C/LPA/1263/2011 JUDGMENT committed any illegality or impropriety while exercising powers under the provisions of the Act.
8. Mr. Kamal Trivedi learned Senior Advocate appearing with Mr. HS Munshaw for respondentSUDA submitted that Section 20 of the TP Act deals with "acquisition of land"
whereas, Section 21 requires "revision" of final development plan at least once in 10 years. It is submitted that both the Sections are required to be read conjunctively and not individually.
8.1 It is submitted by learned Senior Advocate Mr. Trivedi that Section 20 of the TP Act is an enabling provision inasmuch as the period fixed therein does not compel the authority to acquire the land within the prescribed period but, it only enables the owner to give notice for acquisition thereafter. What Section 20 of the TP Act contemplates is that if within 10 years from the date of coming into force of the final development plan the land is not acquired, the owner gets a right to serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of such notice, the land is not acquired or no steps are commenced for its acquisition, the reservation of the land shall be deemed to have lapsed.
Page 19 of 61
19 of 122
C/LPA/1263/2011 JUDGMENT
8.2 Learned Senior Advocate Mr. Trivedi submitted that the condition precedent for the running of time of 6 months u/s.20(2) is the service of a valid notice after the expiry of 10 years from the date of coming into force of the final development plan. Thus, there is no automatic lapsing of reservation u/s.20 of the TP Act. In other words, the absence of notice or service of invalid notice, will not be a bar for the authority to continue with the very reservation while undertaking the exercise of revision u/s.21 of the TP Act. There is nothing unreasonable in the fixation of period of 10 years by the legislature u/s.20 of the TP Act, which may, eventually, get extended in the absence of a valid notice as per Section 20(2) of the TP Act.
8.3 It is contended by learned Senior Advocate Mr. Trivedi that it was only after 06.03.2004 when the final development plan came into effect that the original petitioners began making representation for the release of land from reservation. The original petitioners could not have done so within the period of 10 years from 06.03.2004 and were bound to wait for the completion of 10 years on 05.03.2014, whereafter, the service of such notice would have allowed the running of time of 6 months.
Page 20 of 61
20 of 122
C/LPA/1263/2011 JUDGMENT
8.4 In support of his submissions, Mr. Kamal Trivedi learned Senior Advocate placed reliance upon the following decisions;
(I) Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association and others, 1988 (Supp.) SCC 55. In Paras - 6 & 7, the Apex Court observed as under;
"6. Aggrieved, the appellant carried an appeal to a Division Bench under s. 15 of the Letters Patent. Bharucha, J. speaking for himself and Desai, J. upheld the view of the learned Single Judge and held that the most crucial step was the application to be made by the Corporation to the State Government under s. 126(1) of the Act for acquisition of the land, it ought to have been taken within the period of six months commencing from July 4, 1977, the date of service of the purchase notice. That decision proceeds upon the view that the details of ownership or particulars of tenants are not required to be furnished in the purchase notice served by the owner or any person interested in the land. All that is required is that the owner or the person interested in the land must inform the authority that the land reserved for any plan under the Act had not been acquired by agreement within 10 years from the date on which the plan came into force and that proceedings for acquisition of such land under the Land Acquisition Page 21 of 61 21 of 122 C/LPA/1263/2011 JUDGMENT Act had not been commenced within that period. It has accordingly held that the purchase notice dated July 1, 1977 served by respondents nos. 47,the trustees, was a valid notice under s. 127 of the Act and therefore the period of six months specified in s. 127 commenced running from July 4, 1977, the date of service, and came to an end on January 4, 1978. That being so, it was held that upon the expiry of the period of six months on January 3, 1978, the reservation of the land for recreation ground lapsed and it was released from such reservation.
7. According to the plain reading of s. 127 of the Act, it is manifest that the question whether the reservation has lapsed due to the failure of the Planning Authority to take any steps within a period of six months of the date of service of the notice of purchase as stipulated by s.126, is a mixed question of fact and law. It would therefore be difficult, if not well nigh impossible, to lay down a rule of universal application. It cannot be posited that the period of six months would necessarily begin to run from the date of service of a purchase notice under s. 127 of the Act. The condition prerequisite for the running of time under s. 127 is the service of a valid purchase notice. It is needless to stress that the Corporation must prima facie be satisfied that the notice served was by the owner of the affected land or any person interested in the land. But, at the same time, s. 127 of the Act does not contemplate an investigation into title by the officers of the Planning Authority, nor can the officers prevent the running of time if there is a valid notice. Viewed in that perspective, the High Court rightly held that the Executive Engineer of the Municipal Corporation was not justified in addressing Page 22 of 61 22 of 122 C/LPA/1263/2011 JUDGMENT the letter dated July 29, 1977 by which he required respondents nos. 47, the trustees, to furnish information regarding their title and ownership, and also to furnish particulars of the tenants, the nature and user of the tenements and the total area occupied by them at present. The Corporation had the requisite information in their records. The High Court was therefore right in reaching the conclusion that it did. In the present case, the Planning Authority was the Municipal Corporation of Greater Bombay. It cannot be doubted that the Municipal Corporation has access to all land records including the records pertaining to cadastral survey no. 176 of Tardeo. We are inclined to the view that the aforesaid letter dated July 28, 1977 addressed by the Executive Engineer was just as attempt to prevent the running of time and was of little or no consequence. As was rightly pointed out by respondents nos. 47 in their reply dated August 3, 1977, there was no question of the period of six months being reckoned from the date of the receipt from them of the information requisitioned. The Municipal Corporation had been assessing the trust properties to property tax and issuing periodic bills and receipts therefor and obviously could not question the title or ownership of the trust. We are informed that the building being situate on Falkland Road, the occupants are mostly dancing girls and this is in the knowledge of the Corporation authorities. The rateable value of each tenement would also be known by an inspection of the assessment registers. We must accordingly uphold the finding arrived at by the High Court that the appellant having failed to take any steps, namely, of making an application to the State Government for acquiring the land under the Land Acquisition Act within a period of six months from the Page 23 of 61 23 of 122 C/LPA/1263/2011 JUDGMENT date of service of the purchase notice, the impugned notification issued by the State Government under s. 6 of the Land Acquisition Act making the requisite declaration that such land was required for a public purpose i.e. for a recreation ground was invalid, null and void."
(II) Girnar Traders v. State of Maharashtra and others, (2007) 7 SCC 555. In Paras - 11, 12, 30 & 31, the Apex Court observed as under;
"11. On 3.2.1998 the appellants served notice through their advocates under Section 127 of the MRTP Act asking for renotifying the property or to release the said property from reservation and accord sanction/approval to develop the property by the owner. In reply, the Municipal Corporation, Greater Mumbai informed the appellants that purchase notice issued by their advocates was invalid as ten years had not expired since the sanction of the revised development plan, came into force on 16.9.1991. On 18.10.2000, the appellants again served purchase notice under Section 127 of the MRTP Act. Again the Municipal Corporation of Greater Mumbai informed the appellants that the notice was invalid as the period of ten years had not lapsed from the date of the revised plan.
12. On 15.3.2002, the appellants addressed yet another notice to the Municipal Corporation, Greater Mumbai under Section 127 of the MRTP Act stating therein that ten years' period had lapsed on 16.9.2001 and since no proceedings for acquisition of the land as Page 24 of 61 24 of 122 C/LPA/1263/2011 JUDGMENT contemplated under Section 127(1) of the MRTP Act or under the Land Acquisition Act , 1894 (hereinafter referred to as "the LA Act") having been commenced nor has any award been made or compensation paid, the property should be dereserved. The purchase notice was served on the Municipal Commissioner, Greater Mumbai on 19.3.2002.
30. Section 127 of the MRTP Act which requires consideration in the present case is a provision which provides, as is clear from its heading itself, for lapsing of reservation of the lands included in the development plan. The development authority for utilization of the land for the purpose for which it is included in the plan has to take steps and do things within the period stipulated in a particular span of time, the land having been reserved curtailing the right of the owner of its user. Section 127 reads as under:
"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 Page 25 of 61 25 of 122 C/LPA/1263/2011 JUDGMENT 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."
31. Section 127 prescribes two time periods. First, a period of 10 years within which the acquisition of the land reserved, allotted or designated has to be completed by agreement from the date on which a regional plan or development plan comes into force, or the proceedings for acquisition of such land under the MRTP Act or under the LA Act are commenced. Secondly, if the first part of Section 127 is not complied with or no steps are taken, then the second part of Section 127 will come into operation, under which a period of six months is provided from the date on which the notice has been served by the owner within which the land has to be acquired or the steps as aforesaid are to be commenced for its acquisition. The sixmonth period shall commence from the date the owner or any person interested in the land serves a notice on the planning authority, development authority or appropriate authority expressing his intent claiming dereservation of the land. If neither of the things is done, the reservation shall lapse. If there is no notice by the owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. Second part of Section 127 stipulates that the reservation of the land under a development scheme shall lapse if the land is not acquired or no steps are taken for acquisition of the land within the period of Page 26 of 61 26 of 122 C/LPA/1263/2011 JUDGMENT six months from the date of service of the purchase notice. The word "aforesaid" in the collocation of the words "no steps as aforesaid are commenced for its acquisition" obviously refers to the steps contemplated by Section 126 of the MRTP Act."
9. Mr. Hardik Soni learned Asst. Government Pleader appearing on behalf of the respondentState adopted the submissions made by Mr. Kamal Trivedi learned Senior Advocate appearing for SUDA and Mr. Prashant Desai learned Senior Advocate appearing for respondentSMC.
10. Mrs. Ketty Mehta learned counsel appearing on behalf of respondents no.1, 2.4 & 3 in LPA No.1481 of 2013 and Mr. R.S. Sanjanwala learned counsel appearing on behalf of respondents no.1 & 2 in LPA No. 1361 of 2013 adopted the arguments canvassed by learned Senior Advocate Mr. R.R. Marshall appearing on behalf of the appellants, original land owners, in LPA No.1263 of 2011. The sum and substance of their submission is that the owner of a reserved land would not lose his right of getting the land defreezed by serving six months' notice u/s.20(2) of the Act, if there is any proposal by issuance of a draft revised final development plan within ten years or on expiry of ten years of the original development plan.
Page 27 of 61
27 of 122
C/LPA/1263/2011 JUDGMENT
10.1 It is their submission that previous operation of Sections 9 to 20 of the Act resulting into preparation of a final development plan would not nullify the right created in favour of the land owner to serve six months' notice for getting his land dereserved on subsequent revision of the plan pursuant to its commencement and expiry after ten years.
10.2 It is their submission that the mention of Section 20 in Section 21 of the Act for revision does not show any intention of the Legislature to curtail or take away the right already accrued in favour of a landowner u/s.22 of getting his land defreezed. Sections 9 to 21 of the Act, in course of revision of a development plan u/s.21, would be applicable to the extent rights have not already been created in favour of landowner u/s.20 on expiry of 10 years from the earlier final development plan and by serving of six months' notice with consequent failure of authority to acquire the land. 10.3 It is, therefore, contended on behalf of the private land owners that the landowners cannot go on waiting for further period of ten years from each revised development plan for the purpose of invoking his right of six months' Page 28 of 61 28 of 122 C/LPA/1263/2011 JUDGMENT notice u/s.20(2) of the Act, as and when the process of preparation of draft revised development plan commences u/s.21 of the Act before or on expiry of ten years' period counted from the earlier final development plan. Mere issuance of a draft revised final development plan u/s.21 of the Act by the authority shall not take away the right already accrued and vested in the landowner on expiry of 10 years period from the existing final development plan and failure of the authority to acquire the land in six months' notice period.
10.4 In support of the submissions, reliance has been placed on a reported decision of the Apex Court in the case of State of Maharashtra v. Bhakti Vedanta Book Trust and others, (2013) 4 SCC 676 and more particularly, on the observations made in Paras - 8, 10 & 15, which reads as under;
"8. We have heard learned counsel for the parties and perused the record. Section 126 of the 1966 Act, which provides for the acquisition of land required or reserved for any of the public purposes specified in any plan or scheme prepared under the Act and Section 127 of the 1966 Act, which envisages lapsing of reservation in certain contingencies read as under:Page 29 of 61
29 of 122 C/LPA/1263/2011 JUDGMENT "Section 126. Acquisition of land required for public purposes specified in plans. (1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A acquire the land,
(a) by an agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the landowner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor's interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Land Acquisition Act, 1894, Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Page 30 of 61 30 of 122 C/LPA/1263/2011 JUDGMENT Development Control Regulations prepared in this behalf provide, or
(c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894, and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this section or under the Land Acquisition Act, 1894, as the case may be, shall vest in the Planning Authority. Development Authority, or as the case may be, any Appropriate Authority.
(2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or if the State Government (except in cases falling under section 49 and except as provided in section 113A) itself is of opinion that any land in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894 (1 of 1894), in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section :
Provided that, subject to the provisions of subsection (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Page 31 of 61 31 of 122 C/LPA/1263/2011 JUDGMENT Development Plan or any other Plan, or Scheme, as the case may be.
(3) On publication of a declaration under the said section 6, the Collector shall proceed to take order for the acquisition of the land under the said Act; and the provisions of that Act shall apply to the acquisition of the said land, with the modification that the market value of the land shall be,
(i) where the land is to be acquired for the purposes of a new town, the market value prevailing on the date of publication of the notification constituting or declaring the Development Authority for such town;
(ii) where the land is acquired for the purposes of a Special Planning Authority, the market value prevailing on the date of publication of the notification of the area as an undeveloped area; and
(iii) in any other case the market value on the date of publication of the interim development plan, the draft development plan, or the plan for area or areas for comprehensive development, whichever is earlier, or as the case may be, the date or publication of the draft town planning scheme:
Provided that, nothing in this subsection shall affect the date for the purposes of determining the market value of land in respect of which proceedings for acquisition commenced Page 32 of 61 32 of 122 C/LPA/1263/2011 JUDGMENT before the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972 (Mah. XI of 1973):
Provided further that, for the purpose of clause (ii) of this subsection, the market value in respect of land included in any undeveloped area notified under subsection (1) of section 40 prior to the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972 (Mah. XI of 1973), shall be the market value prevailing on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to subsection (2) and in subsection (3), if a declaration is not made within the period referred to in subsection (2) or having been made, the aforesaid period expired at the commencement of the Maharashtra Regional Town Planning (Amendment) Act, 1993, the State Government may make a fresh declaration for acquiring the land under the Land Acquisition Act, 1894 (I of 1894), in the manner provided by subsections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring the land afresh.
Section 127. Lapsing of reservation - 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, Page 33 of 61 33 of 122 C/LPA/1263/2011 JUDGMENT 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 (1 of 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 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."
10. A writ petition filed by Dr. Hakimwadi Tenants' Association questioning the notification was allowed by the learned Single Judge of the Bombay High Court, who held that the acquisition proceedings commenced by the State Government under Section 126(2) of the 1966 Act at the instance of the Planning Authority were not valid because steps were not taken for the acquisition of land under Section 126(1) of the 1966 Act read with Section 6 of the 1894 Act within the prescribed time. The learned Single Judge observed that the period of six months prescribed under Section 127 of the 1966 Act began to run from the date of service of purchase notice and the Corporation had to take steps to acquire the property before 4.1.1978, which was not done. The Division Page 34 of 61 34 of 122 C/LPA/1263/2011 JUDGMENT Bench of the High Court approved the view taken by the learned Single Judge and held that the most crucial step was the application to be made by the Corporation to the State Government under Section 126(1) of the 1966 Act for the acquisition of the land and such step ought to have been taken within the period of six months commencing from 4.7.1977. This Court agreed with the counsel for the Corporation that the words 'six months from the date of service of such notice' used in Section 127 of the 1966 Act were not susceptible to a literal construction, but observed: (Hakimwadi Tenants' Assn. Case, SCC p.61, para 8) "8. ....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."
15. Recently, another three Judge Bench, of which both of us were members, considered the scope of Sections 126 and 127 of the 1966 Act in the Civil Appeal arising out of SLP(C) No.9934 of 2009 Shrirampur Municipal Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher and others and connected matters and reiterated the view expressed by the majority in Girnar Traders v. State of Page 35 of 61 35 of 122 C/LPA/1263/2011 JUDGMENT Maharashtra (supra). In the last mentioned judgment, the Court emphasized that if any private land is shown as reserved in the Development plan, the same can be acquired within 10 years either by agreement or by following the procedure prescribed under the 1894 Act and if proceedings for the acquisition of the land are not commenced within that period and a further period of six months from the date of service of notice under Section 127 of the 1966 Act, reservation will be deemed to have lapsed and the land will be available for development by the owner."
11. Before we embark upon the merits of the case, it would be beneficial to highlight certain facts which are undisputed.
12. In LPA No.1263/2011 : The principal development plan of SUDA was sanctioned in the year 1986, in which the land bearing Revenue Survey no.19(B) (new Revenue Survey No.57/2 paiki) of Village Rundh, Taluka & City : Surat, was reserved for "post and telegraph" vide "H45", which was revised under the provisions of Section 21 of the TP Act. In the year 1996, the revised draft development plan was submitted to the State Government by SUDA u/s.16 of the TP Act in which the land under reference was proposed for reservation for office building of "post and telegraph". However, in exercise of powers u/s.17(1)(a)(ii) of the TP Act, Page 36 of 61 36 of 122 C/LPA/1263/2011 JUDGMENT the State Government proposed certain modifications in the revised draft development plan submitted by SUDA and invited suggestions and objections on the proposed modifications by Notification, which was published in the Official Gazette on 17.05.2001. By Modification No.93, the State Government proposed to delete the earlier reservation and rereserve it "for residential use".
13. It appears that it was only a proposal of the State Government to delete the reservation and designate the land under reference "for residential use". On this proposal, the State Government invited objections and suggestions. Pursuant to the objections and suggestions so received, the State Government sanctioned the revised draft development plan of SUDA under the provisions of Section 17(1)(c) of the TP Act, by Notification dated 02.09.2004, which came into force from 15.09.2004. However, by the said Notification dated 02.09.2004, the State Government decided to continue with the reservation on the land under reference for office building of "post and telegraph".
14. Thereafter, on the proposal submitted by SUDA, by Notification dated 07.09.2009 issued u/s.19 of the TP Act, the State Government made variations in the development Page 37 of 61 37 of 122 C/LPA/1263/2011 JUDGMENT plan by which the land under reference was reserved "for public purpose of SMC" in place of office building of "post and telegraph" u/s.12(2)(k) of the TP Act.
15. In LPA No.1481/2013 : In respect of the subject lands, the first development plan came to be finalized in the year 1986 and they were reserved "for commercial purpose for SUDA" in the draft development plan. It was sanctioned by the State Government on 03.01.1986 and it came into force on 03.03.1986. Subsequently, the SUDA prepared a revised draft development plan and submitted it to the State Government u/s.16 of the TP Act. Subsequent to the submission of the revised draft development plan, the State Government published a modification in the development plan u/s.17 of the TP Act, through Notification dated 17.05.2001 and invited suggestions and objections to it. After following due procedure, the State Government sanctioned the revised development plan on 02.09.2004 and it came into force with effect from 15.09.2004.
16. It appears that when the exercise for revised draft development plan was initiated under the provisions of the TP Act in the year 1996, the State Government dropped the reservation of the subject lands while publishing the Page 38 of 61 38 of 122 C/LPA/1263/2011 JUDGMENT Notification dated 17.05.2001. However, while finalizing the revised draft development plan, the State Government thought it fit not to drop the reservation of the subject lands and continued the reservation as per the provisions of Section 20(2) of the TP Act. It also appears that SUDA had initiated steps for finalization of the subject lands in the year 1986 and Notifications u/s.4 and 6 of the Land Acquisition Act, 1894 were also issued. However, at a later point of time, the proceedings under the Land Acquisition Act were dropped in the year 1988 on the ground that the subject lands were declared surplus / excess under the provisions of the Urban Land Ceiling Act, 1976. However, the competent authority could not take possession of the subject lands on account of pendency of a writ petition being Special Civil Application No.281/1991 filed by the landowner before this Court. The said petition was disposed of in favour of the landowner, vide order dated 20.04.1999, as the Urban Land Ceiling Act had been repealed. Therefore, while issuing final Notification on 24.09.2001, the State Government continued reservation of the subject lands "for commercial purpose for SUDA". In this case, the first Notice u/s.20(2) of the TP Act came to be issued on 13.10.2007.
Page 39 of 61
39 of 122
C/LPA/1263/2011 JUDGMENT
17. In LPA No.1361/2013 : The subject lands bearing Survey No.86 paiki admeasuring 8012 sq. metres and Survey No.91 paiki admeasuring 1543 sq. metres at Rajkot I, Rajkot, were reserved by the Rajkot Urban Development Authority "for RUDA Site and Service Project" in the draft development plan, The draft development plan of RUDA was sanctioned vide Notification dated 27.04.1988. Subsequently, a revised draft development plan was prepared, which was sanctioned by the State Government vide Notification dated 20.02.2004 and it came into effect on 06.03.2004 wherein, the subject lands were again reserved for the same purpose. In this case, the first Notice u/s.20(2) of the TP Act came to be issued on 30.06.2006. REASONINGS :
18. Before proceeding further, a reference to Section 20 of the TP Act is apposite. It reads as under;
"20. Acquisition of land : (1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or Page 40 of 61 40 of 122 C/LPA/1263/2011 JUDGMENT clause (o) of subsection (2) of section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.
(2) If the land referred to in subsection (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.
18.1 The above provision specifically provides that after a period of ten years from the date of coming into force of the final development plan, the owner or any person interested in the land may issue a Notice on the authority concerned requiring it to acquire the land and if within a period of six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition under the Land Acquisition Act, the designation of the land Page 41 of 61 41 of 122 C/LPA/1263/2011 JUDGMENT would be deemed to have lapsed. Thus, Notice as envisaged under subsection (2) of Section 20 of the TP Act is a sine qua non for lapsing of reservation.
19. The main contention raised on behalf of the appellant original petitioner is that as the land under reference was put under reservation in the development plan since 1986, ie. for a period of more than 23 years, it could not have been rereserved "for public purpose for SMC" since the reservation had lapsed after a period of 10 years from the date of sanction of the original development plan. Though the contention sounds to be attractive but, it is without any merits. As such, there is no provision in the TP Act by which reservation of a land in the development plan lapses automatically after a period of 10 years. 19.1 The only provision which relates to lapse of reservation in the development plan is Section 20, more particularly, subsection (2) of the TP Act. As per subsection (2) of Section 20, if the land which is referred to in the development plan for any public purpose, is not acquired by agreement within a period of 10 years from the date of coming into force of the final development plan or if the proceedings under the Land Acquisition Act, 1894 are not Page 42 of 61 42 of 122 C/LPA/1263/2011 JUDGMENT commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice, the land is not acquired or no steps are commenced for its acquisition, the designation of the land shall be deemed to have lapsed.
20. It is to be noted that in the present case, admittedly, no such Notice as required u/s.20(2) of the TP Act has been served by the appellantoriginal petitioner. The aforesaid fact situation is also not disputed by learned Senior Advocate Mr. RR Marshall for the appellantoriginal petitioner. In Girnar Traders' case (supra), the Apex Court categorically held that considering similar provisions under the Maharashtra Regional and Town Planning Act, 1966 that if there is no notice by the owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. Hence, the contention on behalf of the appellant that after 10 years of sanction of the development plan, the reservation lapses automatically, cannot be accepted.
21. The Town Planning Act does not contemplate that any development plan which is prepared shall lapse at any point Page 43 of 61 43 of 122 C/LPA/1263/2011 JUDGMENT of time. It only contemplates the plan being varied u/s.19 by the State Government or a revised development plan being prepared by the area development authority u/s.21. When power is given, a duty is cast on the development authority, at least once in ten years, to revise the development plan. It does not mean that the development plan comes to an end at the end of 10 years. Section 21 is an enabling provision which casts a duty on the development authority to revise a plan at least once in 10 years. The revision can take place more than once but if the authority, for reasons best known to itself, chooses not to revise a development plan, the effect of it would not be that the plan would lapse. The plan would continue to be in operation till it is either revised u/s.21 or varied u/s.19.
22. It appears from the record that at no point of time, either in the year 1996 or in 2001 or in 2004, the appellant original petitioner had raised any objection against the continuation of reservation. If the appellant had any grievance against such reservation, he ought to have raised necessary objection, by availing the remedy provided under Section 20 of the TP Act, in the form of calling upon the appropriate authority to acquire the land by issuing Notice under subsection (2). However, no such steps were taken Page 44 of 61 44 of 122 C/LPA/1263/2011 JUDGMENT by the appellantoriginal petitioner. Therefore, at this stage, it is not open to the appellant to raise grievance against the continuation of reservation. For a period of almost 23 years, the original petitioner did nothing and suddenly, he woke out of slumber in the year 2010 when Notice was served upon him by the respondentCorporation for negotiation u/s.77 of the BPMC Act.
23. Once the appellantoriginal petitioner had failed to submit the objections in pursuance of the Notification dated 01.07.2009 and thereby, permitted the variations in the development plan, it would tantamount to Elvis having left the building for the appellant. The inaction of the appellant original petitioner would disentitle him from obtaining an equitable relief, particularly, when the entire event has come to an irreversible situation. The appellant had the right to serve Notice as required u/s.20(2) of the TP Act. However, the appellant had failed to avail such remedy and therefore, now, it is not open for the appellantoriginal petitioner to contend that the continuation of reservation is illegal or for that matter, the variation in the purpose is unreasonable.
24. A person may waive a right either expressly or by Page 45 of 61 45 of 122 C/LPA/1263/2011 JUDGMENT necessary implication. He may, in a given case, disentitle himself from obtaining an equitable relief, particularly, when he allows a thing to come to an irreversible situation. If a claim is not filed, the person, who is said to be injuriously affected, does so at its own peril. Therefore, the contention raised by appellantoriginal petitioner that statutory right cannot be waived is devoid of any merits as it would amount to waiver only.
25. In the present case, we find that the appropriate authority has completely followed the procedure, as required under the provisions of the TP Act while reserving the land under reference "for public purpose for SMC". Before the land under reference was proposed to be varied, suggestions and objections were invited vide Notification dated 01.07.2009. At that point of time, the appellant original petitioner had never raised any objection. It was only after following due procedure that Notification in exercise of powers u/s.19 of the TP Act was issued by the authority whereby, the land under reference was put under reservation "for public purpose for SMC".
26. It is by now wellsettled that continuation of reservation in the development plan is permissible subject Page 46 of 61 46 of 122 C/LPA/1263/2011 JUDGMENT to the provisions of Sections 20 and 21 of the TP Act. Section 20 of the TP has been reproduced herein above and for ready reference, Section 21 is reproduced here under;
"21. Revision of development plan : At least 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, apply to such revision."
27. As is clear from the above proviso, the only requirement u/s.21 of the TP Act is to "revise" the development plan on completion of every ten years. A conjoint reading of Sections 19 and 21 of the TP Act would imply that at least once in ten years from the date on which a final development plan comes into force, the area development authority is required to revise the development plan, after carrying out, if necessary, a fresh survey. While revising the development plan, if the area development authority is of the opinion that the development plan is required to be varied, then the procedure provided u/s.19 of the TP Act is required to be followed. The TP Act no where Page 47 of 61 47 of 122 C/LPA/1263/2011 JUDGMENT provides that designation of a land would lapse automatically.
28. If Section 20 is interpreted in the language of learned Senior Advocate Mr. Marshall, then Section 21 would become otiose. It was never the intent of the Legislature to get a designation lapse automatically. The purpose behind providing such revision is to insulate the public authority, which is entrusted with the duty of carrying out developmental activities, with necessary safeguards so as to meet the challenges of changing times. By providing such revision, the public authority gets the opportunity to identify the developmental requirements of different areas and to take necessary steps accordingly. Hence, the interpretation of Sections 20 & 21, as made by learned Senior Advocate Mr. Marshall, is without any substance.
29. Before the learned single Judge, we find that the appellantoriginal petitioner (In SCA No.16748 of 2010) had not challenged the Notification dated 07.09.2009 issued u/s.19 of the TP Act by which the development plan has been varied and the land under reference, which was earlier reserved for "post and telegraph", is now reserved "for public purpose for SMC". In the writ petition, the original petitioner Page 48 of 61 48 of 122 C/LPA/1263/2011 JUDGMENT had only prayed for an appropriate order holding and declaring that the land under reference is free from reservation and that the original petitioner is entitled to use it for residential purpose.
30. Another contention was raised on behalf of the appellantoriginal petitioner that the action of continuing reservation of the land under reference for a number of years is unreasonable and also violative of the right to acquire and use property, which is considered to be a human right. Very recently, in the case of Ahmedabad Municipal Corporation and another v. Ahmedabad Green Belt Khedut Mandal and others, AIR 2014 SC 2377, the Apex Court in para28 observed as under;
"28. Article 300A of the Constitution though creates a human right being a constitutional provision, but is not a fundamental right. Article 300A provides that no person can be deprived of his property except by authority of law. The Town Planning Act is definitely an authority of law by which a person is deprived of his property if we assume that the town planning scheme deprives a person of his property, though it is not so in view of the judgments of this Court in Shantilal Mangaldas (supra) and Prakash Amichand Shah (supra)."Page 49 of 61
49 of 122 C/LPA/1263/2011 JUDGMENT
31. It is a settled legal position that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the Court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective meaning to every word of the provision. The important factor is that the action should be with due authority of law.
32. We have no doubts in our minds that the authority concerned is empowered to acquire land by following due procedure as prescribed under the TP Act. As discussed in the foregoing paragraphs, it was only after following due procedure that Notification in exercise of powers u/s.19 of the TP Act was issued by the authority whereby, the land under reference was put under reservation "for public purpose for SMC". It does not appear that the appropriate authority has flouted any of the provisions of the TP Act while designating the land under reference. Hence, the contention raised by the appellantoriginal petitioner that his human right has been violated cannot be accepted.
Page 50 of 61
50 of 122
C/LPA/1263/2011 JUDGMENT
33. The appellantoriginal petitioner has also raised a contention that the land in question was continued under reservation for number of years and he was not permitted to use the said land, and therefore, now, it is not open for the appropriate authority to again rereserve the land for "public purpose for SMC". It is true that the land in question was continued under reservation for "post and telegraphs" for number of years. However, it is to be noted that such continuation of reservation in the development plan is permissible. Unless the plan is revised u/s.21 and / or the same is varied u/s.19 of the TP Act, the reservation and the development plan continues and it does not lapse.
34. As discussed herein above, for all these years, the appellantoriginal petitioner had neither raised any objection nor had served any Notice as envisaged under subsection (2) of Section 20 of the TP Act. Therefore, at this stage, it is not open for the appellantoriginal petitioner to make any grievance with respect to continuation of reservation for number of years, which, otherwise, is permissible under the provisions of the Gujarat Town Planing Act.
35. The land under reference is now designated "for public Page 51 of 61 51 of 122 C/LPA/1263/2011 JUDGMENT purpose for SMC". Immediately after issuing Notification dated 07.09.2009, respondentSurat Municipal Corporation initiated proceedings for acquiring the land, initially, by negotiations u/s.77 of the BPMC Act and the appellant original petitioner was also called upon for negotiations. However, the negotiations failed and therefore, the land under reference is now being required u/s.78 of the BPMC Act. It is at this stage that the appellantoriginal petitioner had preferred the captioned writ petition being SCA No.16748/2010 and until then the appellantoriginal petitioner was dormant.
36. Insofar as the principle rendered in Bhavnagar University Vs. Palitana Sugar Mills Pvt. Ltd. and Ors.'s case (supra) is concerned, the same shall not be applicable to the facts of the present case. In the abovereferred case, on or about 03.03.1986, the development plan was published in terms of the provisions of the TP Act and the period of ten years therefrom was to lapse on 02.03.1996. But, before the expiration of ten years from the date of publication of the final development plan on 03.03.1986, a revised development plan came into being on 20.02.1996. The owners of the land invoked Section 20(2) of the TP Act by issuing Notice asking the State Government to acquire the Page 52 of 61 52 of 122 C/LPA/1263/2011 JUDGMENT lands. In the backdrop of these facts, the Supreme Court held that the revised development plan could not have been published before expiration of ten years, ie. 02.03.1996. Since the revised development plan, before expiration of ten years from the publication of the final development plan was held to be bad, the Notice u/s.20(2) of the TP Act was held to be perfectly valid. Whereas, in the present case, admittedly, no Notice u/s.20(2) of the TP Act at all has been issued by the original landowner and after expiration of ten years from the date of publication of the final development plan, the process of revised development plan was undertaken and in fact, the plan has been revised in the year 2004 and therefore, it cannot be held that after expiration of ten years from the date of publication of first development plan, the reservation has lapsed since the authorities have not taken any steps either to acquire the land or initiated process under the Land Acquisition Act. Therefore, the aforesaid decision shall not be of any help to the appellant.
LPA No.1481/2013 :
37. In this matter, the first development plan came to be finalized in the year 1986. The subject lands were reserved "for commercial purpose for SUDA" in the draft development Page 53 of 61
53 of 122 C/LPA/1263/2011 JUDGMENT plan of SUDA, which was sanctioned by the State Government on 03.01.1986 and which came into force on 03.03.1986. Subsequently, SUDA prepared a revised draft development plan and submitted it to the State Government u/s.16 of the TP Act. Subsequent to the submission of the revised draft development plan, the State Government published a modification in the plan u/s.17 of the TP Act through Notification dated 17.05.2001 and invited suggestions and objections to it. After following due procedure, the State Government sanctioned the revised development plan on 02.09.2004 and it came into force with effect from 15.09.2004.
38. It appears that when the exercise for revised draft development plan was initiated under the provisions of the TP Act in the year 1996, the State Government dropped the reservation of the subject lands while publishing the Notification dated 17.05.2001. However, while finalizing the revised draft development plan, the State Government thought it fit not to drop the reservation of the subject lands and continued the reservation as per the provisions of Section 20(2) of the TP Act.
39. It also appears that SUDA had initiated steps for Page 54 of 61 54 of 122 C/LPA/1263/2011 JUDGMENT finalization of the subject lands in the year 1986 and Notifications u/s.4 and 6 of the Land Acquisition Act, 1894 were also issued. However, at a later point of time, the said proceedings under the Land Acquisition Act were dropped in the year 1988 on the ground that the subject lands were declared surplus / excess under the provisions of the Urban Land Ceiling Act, 1976. However, the competent authority could not take over possession of the subject lands on account of the pendency of writ petition being Special Civil Application No.281/1991 filed by the landowner before this Court. The said petition was disposed of in favour of the landowner, vide order dated 20.04.1999, as the Urban Land Ceiling Act had been repealed. Therefore, while issuing the final Notification on 24.09.2001, the State Government continued reservation of the subject lands "for commercial purpose for SUDA".
40. While entertaining the writ petition being Special Civil Application No.7088/2008, the learned single Judge in Para16 observed as under;
"16. Applying the aforesaid principles to the facts of the present case, the final development plan came to be sanctioned on 3 rd January, 1986 and came into Page 55 of 61 55 of 122 C/LPA/1263/2011 JUDGMENT force on 3 rd March, 1986. Accordingly, the ten year period came to an end on 4 th March, 1996. Thereupon, a right came to be created in favour of the land owners under section 20 of the Town Planning Act to serve six months notice to the authorities to acquire the subject land, failing which, the reservation would be deemed to have lapsed. The framing of revised development plan subsequent to the period of ten years from the first final development plan and sanctioning thereof, would not take away the rights of the petitioners under sub section (2) of section 20 of serving notice thereunder to the respondent authorities to acquire the subject lands. Accordingly, the petitioners served notice dated 13th October, 2007 under subsection (2) of section 20 of the Town Planning Act to the respondent authorities requiring them to acquire the subject lands. However, the respondent authorities failed to acquire the subject lands or to commence steps to acquire them. Consequently, upon failure to comply with the said notice, the provisions of subsection (2) of section 20 came into operation and the reservation is deemed to have lapsed. For the reasons stated hereinabove, the contention that the revised final development plan having been sanctioned in the year 2004, the ten year period would expire only in the year 2014 does not merit acceptance."
41. From the above observations, it is clear that the learned single Judge dereserved the subject lands mainly on the ground that the final development plan of SUDA, which was sanctioned by the State Government on 03.01.1986 and which came into force on 03.03.1986, came Page 56 of 61 56 of 122 C/LPA/1263/2011 JUDGMENT to an end on 04.03.1996 and thereupon, a right was created in favour of the landowners to avail the remedy under sub section (2) of Section 20. At that time, no Notice u/s.20(2) of the TP Act was issued by the landowner.
42. It appears that the learned single Judge lost sight of the fact that the development plan was revised u/s.21 of the TP Act and the revised draft development plan was sanctioned by the State Government on 02.09.2004 and it came into force with effect from 15.09.2004. Therefore, effectively, the final development plan would lapse only on 14.09.2014 and not prior thereto.
43. The very first Notice u/s.20(2) of the TP Act was issued only on 13.10.2007, during which time, the final development plant was in force and was due to lapse only on 14.09.2014. Hence, the Notice was premature. The remedy u/s.20(2) of the TP Act, therefore, would fall due only after 14.09.2014 and not prior thereto. Hence, the learned single Judge has committed serious error in allowing Special Civil Application No.7088/2008. LPA No.1361/2013 :
44. In LPA No.1361/2013, the subject lands were reserved Page 57 of 61 57 of 122 C/LPA/1263/2011 JUDGMENT "for RUDA Site and Service Project". The draft development plan was sanctioned vide Notification dated 27.04.1988. Subsequently, a revised draft development plan was prepared, which was sanctioned vide Notification dated 20.02.2004 and which came into effect on 06.03.2004 wherein, the subject lands were again reserved for the same purpose. The first Notice u/s.20(2) of the TP Act came to be issued on 30.06.2006. The facts of the present case and the facts narrated in LPA No.1481/2013 are almost similar. While entertaining Special Civil Application No.3974/2010, the learned single Judge in para8 observed as under;
"8. Applying the principles laid down in the above decisions to the facts of the present case, as noticed earlier, the final development plan came to be sanctioned on 27.04.1988. Accordingly, the period of ten years came to an end on 26.04.1998. Thereupon, a right came to be created in favour of the petitioners under subsection (2) of section 20 of the Town Planning Act to serve six months notice to the authorities to acquire the subject lands, failing which, the reservation would be deemed to have lapsed. The framing of the revised development plan subsequent to the period of ten years from the first development plan and sanctioning thereof would not take away the rights of the petitioners under subsection (2) of section 20 of the Town Planning Act of serving a notice thereunder to the respondents to acquire the subject lands. Accordingly, the petitioners served the notices dated Page 58 of 61 58 of 122 C/LPA/1263/2011 JUDGMENT 30.06.2006, 01.09.2006 and 24.11.2006 to the respondent authorities under subsection (2) of section 20 of the Town Planning Act requiring them to acquire the subject lands. However, the respondent authorities failed to acquire the subject lands or to commence the steps to acquire them. Consequently, upon failure to comply with the said notices, the provisions of sub section (2) of section 20 of the Town Planning Act came into operation and the reservation is deemed to have lapsed. For the reasons stated hereinabove, the contention that the revised final development plan having been sanctioned in 2004, the ten years period would expire only in the year 2014, does not merit acceptance.
45. In the instant case, the final development plan lapsed on 05.03.2014. The very first Notice u/s.20(2) of the TP Act was issued on 30.06.2006, during which time, the final development plant was in force. Hence, the Notice was premature. The remedy u/s.20(2) of the TP Act, therefore, had fallen due only after 05.03.2014 and not prior thereto.
Hence, the learned single Judge has committed serious error in allowing Special Civil Application No.3974/2010.
46. In present day times, suffice it to say that public bodies are short of funds on account of widespread modernization resulting into delay in completion of essential projects. The public bodies have to wait for funds from the Page 59 of 61 59 of 122 C/LPA/1263/2011 JUDGMENT State Government to commence and complete the projects.
In some cases, the projects relate to essential works like hospitals, health centers, environment, roads & infrastructure, schools / education, etc. It becomes necessary to grant sufficient reasonable time to the public bodies so that essential projects, which are in the larger public interest, could be completed and therefore, the need is kept u/s.21 of the TP Act to revise the final development plan at least once in ten years. It is well known fact that on certain occasions, land owners prevail upon the local authorities and cause delay in projects, which is detrimental to public interest. Considering the facts of the case and the scheme of the TP Act, we are of the opinion that the judgment and order under challenge in LPA No.1263/2011 deserves to be confirmed while quashing and setting aside the judgment and order under challenge in LPAs No.1481/2013 and 1361/2013.
47. For the foregoing reasons, the following order is passed;
(A) LPA No. 1263/2011 is dismissed and the judgment and order rendered in SCA No.16748/2010 dated 13.06.2011 stands confirmed. It shall be open to Page 60 of 61 60 of 122 C/LPA/1263/2011 JUDGMENT the appellantoriginal petitioner to issue Notice u/s.20(2) of the TP Act to the appropriate authority since the period of ten years of reservation lapses on 02nd September 2014.
(B) Letters Patent Appeals No.1481/2013 and 1361/2013 are allowed and the impugned judgment and orders rendered in Special Civil Applications No.7088/2008 dated 07.05.2013 and No.3974/2010 dated 18.07.2013 are quashed and set aside. At this stage, Mr. Apurva Kapadia learned counsel requests for stay of this order for a reasonable period. However, since the reservation has already lapsed on 05.03.2014, there does not lie any question of granting stay of the order. Hence, the request is not considered.
(C) In view of the order passed in LPA No.1481/2013, the Civil Application does not survive and is, accordingly, disposed of.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) Pravin/* Page 61 of 61 61 of 122 C/LPA/1263/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1263 of 2011 In SPECIAL CIVIL APPLICATION NO. 16748 of 2010 With LETTERS PATENT APPEAL NO. 1481 of 2013 In SPECIAL CIVIL APPLICATION NO. 7088 of 2008 With CIVIL APPLICATION NO. 13287 of 2013 In LETTERS PATENT APPEAL NO. 1481 of 2013 With LETTERS PATENT APPEAL NO. 1361 of 2013 In SPECIAL CIVIL APPLICATION NO. 3974 of 2010 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE A.G.URAIZEE ================================================================ 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 Page 1 of 61
62 of 122 C/LPA/1263/2011 JUDGMENT order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ BABUBHAI KURJIBHAI RADADIYA....Appellant(s) Versus SURAT MUNICIPAL CORPORATION & 2....Respondent(s) ================================================================ Appearance:
In LPA No.1263 Of 2011 :
MR RR MARSHALL, SR. ADVOCATE for MR BN PATEL, ADVOCATE for the Appellant(s) No. 1 MR HARDIK SONI ASST. GOVERNMENT PLEADER for the Respondent(s) No. 3 MR KAMAL TRIVEDI, SR. ADVOCATE WITH MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2 MR PRASHANT DESAI, SR. ADVOCATE WITH MR KAUSHAL D PANDYA, ADVOCATE for the Respondent(s) No. 1 In LPA No.1481 Of 2013 :
MR KAMAL TRIVEDI, SR. ADVOCATE WITH MR. HS MUNSHAW, ADVOCATE for the Appellant(s) No. 1 MR HARDIK SONI ASST. GOVERNMENT PLEADER for the Respondent(s) No. 4 MR PRASHANT DESAI, SR. ADVOCATE WITH MR DHAVAL G. NANAVATI, ADVOCATE for the Respondent No. 6 MRS KETTY A MEHTA, ADVOCATE for the Respondents No. 1-2.4, 3 MS ARCHANA R ACHARYA, ADVOCATE for the Respondent No.1-2.4, 3 RULE NOT RECD BACK for the Respondent No.1, 2.1-2.4, 3-5 In LPA No.1361 Of 2013 :
MR KAMAL TRIVEDI, SR. ADVOCATE WITH MR. HS MUNSHAW ADVOCATE for the Appellant(s) No. 1 MR HARDIK SONI ASST. GOVERNMENT PLEADER for the Respondent(s) No. 3-4 MR RS SANJANWALA WITH MR APURVA R KAPADIA, ADVOCATE for the Respondents No.1-2 =========================================================== Page 2 of 61 63 of 122 C/LPA/1263/2011 JUDGMENT CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE A.G.URAIZEE Date : 22nd & 25th August 2014 ORAL JUDGMENT (PER : H ONOURABLE MR.JUSTICE KS JHAVERI)
1. Does a land "reserved" by the area development authority for a public purpose automatically gets de reserved under the provisions of Section20(2) of The Gujarat Town Planning and Urban Development Act, 1986 on expiry of ten years from the date of coming into force of the final development plan or if the proceedings under the Land Acquisition Act, 1894 are not commenced within such period is the short question that has come up for our consideration in this bunch of Letters Patent Appeals. In other words, these appeals relate to the validity, applicability and issues of interpretation of Sections - 20 & 21 of The Gujarat Town Planning and Urban Development Act, 1986 (for short, "the TP Act").
2. Since these Appeals involve common questions on law and facts, they are decided by this common judgment.
3. LPA No.1263 of 2011 arises out of the judgment and order passed by the learned Single Judge in Special Civil Application No.16748 of 2010 dated 13.06.2011 whereby, Page 3 of 61 64 of 122 C/LPA/1263/2011 JUDGMENT the petition is dismissed and it was held that the area development authority is empowered to continue reservation under the provisions of Sections - 20 & 21 the TP Act.
3.1 LPA No.1481 of 2013 has been preferred against the judgment and order passed by the learned Single Judge in Special Civil Application No.7088 of 2008 dated 07.05.2013 whereby, the petition was allowed and it was held that reservation is deemed to have lapsed, upon failure of the authority to acquire the land or to commence steps for acquiring them within six months of service of notice by the landholder under subsection (2) of Section20 of the TP Act.
3.2 LPA No.1361 of 2013 is filed against the judgment and order passed by the learned Single Judge in Special Civil Application No.3974 of 2010 dated 18.07.2013 whereby, the petition was allowed and the principle rendered in SCA No.7088 of 2008 has been reiterated.
4. As similar factual and legal issues are involved in these cases, for convenience, LPA No.1263 of 2011 is taken as the lead case.
Page 4 of 61
65 of 122
C/LPA/1263/2011 JUDGMENT
The appellantoriginal petitioner is the owner of the land bearing Survey No. 57P (57/2) of Village Runch, Taluka & District Surat. The said land came to be included in the Development Plan of respondentSurat Urban Development Authority (for short, "the SUDA"). The principal Development Plan of SUDA was sanctioned in the year 1986. It was revised by SUDA under the provisions of Section21 of the Act and the draft revised Development Plan was submitted u/s.16 of the TP Act in the year 1996, in which the land under reference was proposed for reservation for office building of "post and telegraph". The respondentState Government proposed certain modifications in the draft Development Plan submitted by SUDA in the year 1996 and invited suggestions and objections on the proposed modifications by Notification which was published in the Gujarat Government Gazette Extraordinary on 17.05.2001.
4.1 It appears that by Modification No.93 of the said Notification, the State Government proposed to delete the said reservation and designate the land under reference "for residential use". It may be noted that it was only a proposal of the State Government, on which the objections and suggestions were invited from the general public. Pursuant Page 5 of 61 66 of 122 C/LPA/1263/2011 JUDGMENT to the objections and suggestions so received on the proposed modifications, the State Government sanctioned the draft revised Development Plan of SUDA under the provisions of Section17(1)(c) of the TP Act, vide Notification dated 02.09.2004. 15th September, 2004 was fixed as the date on which the Revised Final Development Plan was to come into force. By the said Notification dated 02.09.2004, the State Government decided to continue reservation on the land under reference for "post and telegraph".
4.2 It appears that on a proposal sent by the SUDA, the State Government made variations in the Development Plan, by which the land under reference was reserved for "public purpose for Surat Municipal Corporation" instead of "Office building for Post and Telegraph", vide Notification dated 07.09.2009 issued u/s.19 of the TP Act. The respondent Surat Municipal Corporation called the owner of land for negotiation u/s.77 of the Bombay Provincial Municipal Corporations Act (for short, "the BPMC Act") for acquisition of the land in question. The landowner made representation on 13.05.2010 against the Notice whereby, he was asked to remain present for negotiations. The land owner remained present for negotiation u/s.77 of the BPMC Act and showed his unwillingness to negotiate about the Page 6 of 61 67 of 122 C/LPA/1263/2011 JUDGMENT land in question. Thereafter, the captioned writ petitions came to be filed before this Court, which came to be dismissed by the learned Single Judge, by way of the impugned judgment and orders.
5. We have heard learned Senior Advocate Mr. R.R. Marshall appearing for Mr. B.N. Patel for the appellant in LPA No.1263 of 2011, Mr. Kamal B. Trivedi learned Senior Advocate appearing with Mr. HS Munshaw for SUDA, Mr. Prashant Desai learned Senior Advocate appearing with Mr. Kaushal Pandya for Surat Municipal Corporation, Mrs. Ketty A. Mehta learned advocate appearing for the original landowners in LPA No.1481 of 2013, Mr. R.S. Sanjanwala learned advocate appearing with Mr. Apurva Kapadia for the landowners in LPA No.1361 of 2013 and Mr. Hardik Soni learned AGP for the respondentState Government.
6. Mr. R.R. Marshall learned Senior Advocate appearing for Mr. B.N. Patel for the appellant submitted that the lands of the appellantoriginal petitioner were placed in reservation "for post and telegraph" in the final development plant by Notification dated 31.01.1986 and since that date onwards, the lands continued under reservation and were not acquired by the development authority nor were they Page 7 of 61 68 of 122 C/LPA/1263/2011 JUDGMENT released from acquisition. The Government of Gujarat issued another Notification dated 07.09.2009 whereby, after a lapse of about 23 years, the lands were released from reservation "for post and telegraph" but, were once again reserved "for the purpose of Surat Municipal Corporation"
(for short, "the SMC").
6.1 It is submitted by the learned Senior Advocate for the petitioner that the lands in question could not have been kept under reservation for a period beyond Ten years and the bar of Section 20 of the TP Act would apply. It is submitted that if after so many years, the Government itself dereserves the lands from the purposes "of post and telegraph", it was no longer open for it to rereserve it for SMC. In support of the above submission, reliance is placed on the following decisions;
I. Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and others, AIR 2003 SC 511 [ (2003) 2 SCC 111]. In Paras - 5, 32 & 34, the Apex Court observed as under;
"5. On or about 3.3.1986 a development plan was finally published in terms of the provisions of the said Act, and the period of 10 years therefrom lapsed on Page 8 of 61 69 of 122 C/LPA/1263/2011 JUDGMENT 2.3.1996. A revised Development plan however came into being on 20th February, 1996. It is not in dispute that respondents who claim ownership of the lands in question issued notices in terms of subsection 2 of Section 20 of the said Act, asking the State Government to acquire the properties in terms thereof.
32. Subsection (2) of Section 20, however, carves out an exception to the exercise of powers by the State as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under subsection (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.
34. The relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse."Page 9 of 61
70 of 122 C/LPA/1263/2011 JUDGMENT II. Bhikubhai Vithalbhai Patel and others v. State of Gujarat and another, AIR 2008 SC 1771 [2008 (4) SCC 144]. In Paras - 33, 35 & 37, the Apex Court observed as under;
"33. The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute.
35. Be that as it may, the impugned preliminary notification itself does not reflect formation of any opinion by the State Government that it had become necessary to make substantial modifications in the draft development plan and, for that reason, instead of returning in the plan, decided to publish the modifications so considered necessary in the Official Gazette along with the notice inviting suggestions or objections with respect to the proposed modifications. It is very well settled, public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the Page 10 of 61
71 of 122 C/LPA/1263/2011 JUDGMENT decision making authority. Public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (See Gordhandas Bhanji and Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi).
37. On consideration of the facts and the material available on record, it is established that the State Government took the action proposing to make substantial modifications to the plan without forming of any opinion, which is a condition precedent for the use of power under proviso to Section 17(1)(a)(ii). The power, to restrict the use of land by the owners thereof, is a drastic power. The designation or reservation of the land and its use results in severe abridgment of the right to property. Statutory provisions enabling the State or its authorities to impose restrictions on the right to use one#s own land are required to be construed strictly. The legislature has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Section 17 and more particularly the proviso to Section 17(1)(a) (ii) prescribes some of the conditions precedent for the exercise of power. The order proposing to make substantial modifications, in breach of any one of those conditions, will undoubtedly be void. On a successful showing the order proposing substantial modifications and designating the land of the appellants for educational use under Section 12 (2) (o) of the Act has been made without the Statement Government applying its mind to the aspect of necessity or without forming an honest opinion on that aspect, it will, we have no doubt, be void."
Page 11 of 61
72 of 122
C/LPA/1263/2011 JUDGMENT
6.2 Learned Senior Advocate Mr. Marshall further submitted that it was an absolute arbitrary exercise of power on the part of the authority to keep an individual's valuable land under reservation for a period of almost 24 years without doing anything. It was submitted that the "right to property" has been recognized as an important constitutional and human right. Therefore, the action of the respondent was clearly violative of the constitutional and human rights of the appellant. In support of the above submission, reliance is placed on the following decisions; I. In P.T. Munichikkanna Reddy and others v. Revamma and others, 2007 (6) SCC 59, the Apex Court held that the "right of property" is now considered to be not only a constitutional or statutory right but also a human right. Human rights have been historically considered in the realm of individual rights such as right to health, right to livelihood, right to shelter and employment, etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension.
II. Bharat Petroleum Corporation Ltd. v. Maddula Page 12 of 61 73 of 122 C/LPA/1263/2011 JUDGMENT Ratnavalli and others, 2007 (6) SCC 81. In Paras - 26 & 29, the Apex Court observed as under;
"26. Reasonableness and nonarbitrariness are the hallmarks of an action by the State. Judged from any angle, the action on the part of the appellant does not satisfy the test of fairness or unreasonableness. It being wholly arbitrary cannot be sustained.
29. Right of property although is not a fundamental right, nonetheless remains a constitutional right and any expropriatory legislation must be construed strictly. (See Hindustan Petroleum Corp. Ltd. v. Darius Shahpur Chennai.)"
III. Chandigarh Housing Board v. MajorGeneral Devinder Singh (Redt.) and another, (2007) 9 SCC 67. In Para11, the Apex Court observed as under;
"11. Right to acquire a property although is not a fundamental right but, is a constitutional and human right. Before a person can be deprived of his right to acquire property, the law and / or a contract must expressly and explicitly state so."
IV. In N. Padmamma and others v. S. Ramakrishna Reddy and others, 2008 (15) SCC 517 the Apex Court held Page 13 of 61 74 of 122 C/LPA/1263/2011 JUDGMENT that "right of property" is a human right as also a constitutional right and the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view the provisions of Article 300A, must be strictly construed. 6.3 It is submitted by learned Senior Advocate Mr. Marshall that Notification dated 02.09.2004 was issued without any application of mind. Before issuing the impugned Notification, the Government had not arrived to any proper satisfaction, based on relevant materials, that it was necessary to dereserve the lands "for the purposes of post and telegraph" and fresh rereserve it "for the purpose of SMC". It is submitted that the details as to on what basis the lands were rereserved was not even reflected in the affidavitinreply filed by the State Government. Therefore, the entire exercise was without any application of mind and deserves to be set aside. In support of this submission, reliance is placed on the decision rendered in Bhikubhai Vithalbhai Patel's case (supra) wherein, it is held that before issuing the Notification for reservation, formation of an opinion is necessary. It was also submitted that it makes no difference whether the variation is under Section 17 or 19 of Page 14 of 61 75 of 122 C/LPA/1263/2011 JUDGMENT the TP Act since the exercise of powers u/s.19 of the TP Act would apply with greater force. It would also make no difference if the variation was by the State itself or at the instance of development authority.
6.4 It was also submitted by learned Senior Advocate Mr. Marshall that all exercises undertaken by the State should stand the test of reasonableness. If they were unreasonable, they could be considered as arbitrary and the Court exercising jurisdiction under Article 226 of the Constitution may junk such arbitrariness. It is submitted that reserving the lands as far back as on 31.01.1986 and robbing the appellantpetitioner of the bona fide use of the same and then against releasing it from reservation and rereserving it as on 07.09.2009, without hearing the appellantpetitioner, is unreasonable and bad in law.
6.5 Mr. Marshall has lastly submitted that the reservation merely states "public purpose of SMC". It does not indicate what "public purpose". It is submitted that even the affidavitinreply of the SMC does not state as to for what public purpose, the SMC requires the lands in question. Hence, the entire exercise of reservation suffers from the vice of vagueness. He, therefore, submitted that the appeal Page 15 of 61 76 of 122 C/LPA/1263/2011 JUDGMENT filed by the appellantoriginal petitioner deserves to be allowed.
7. Mr. Prashant Desai learned Senior Advocate appearing with learned advocates Mr. Dhaval Nanavati and Mr. Kaushal Pandya for respondentSurat Municipal Corporation drew our attention to different provisions of the TP Act, particularly, Sections - 9, 17, 19, 20 & 21. It is submitted that Section 20(2) of the TP Act provides that if the land referred to in subsection (1) of Section 20 is not acquired by agreement within a period of 10 years from the date of coming into force of the final development plan or if the proceeding under the Land Acquisition Act are not commenced, the person interested may serve the notice requiring the authority to acquire the land and if within 6 months from the date of service of such notice the land is not acquired or not steps are commenced for acquisition, the designation of the land as aforesaid shall be deemed to have lapsed.
7.1 Learned Senior Advocate Mr. Desai submitted that Section 21 provides that at least once in 10 years from the date on which the final development plan comes into force, the area development authority shall revise the development Page 16 of 61 77 of 122 C/LPA/1263/2011 JUDGMENT plant and the provisions of Sections 9 to 20 of the TP Act shall be applied to such revision. Therefore, after the period of 10 years when the revision takes place, all the provisions will be applicable, viz. (i) to prepare of draft development plan, (ii) to invite objections and suggestions and ultimately, to send draft development plant for sanction u/s.17 of the TP Act, (iii) the revised draft development plant is to be sanctioned u/s.17 and thereby, clause (d) and (e) will be made applicable and it will become the final development plan.
7.2 It is contended by learned Senior Advocate Mr. Desai that Section 20 of the TP Act speaks about the final development plan and it does not speak about the first final development plan. In the instant case, the revised final development plan was sanctioned u/s.17 of the TP Act and the Notification was issued on 02.09.2004 and the date specified was 15.09.2004. Therefore, once the revised final development plan is sanctioned u/s.17 of the TP Act, it will have the same effect of Section 20 of the TP Act. 7.3 It is further contended by learned Senior Advocate Mr. Desai that Section 20 of the TP Act provides for giving of a notice in respect of the final development plan and not in Page 17 of 61 78 of 122 C/LPA/1263/2011 JUDGMENT respect of draft development plan and therefore, if the revised draft development plan is under preparation and in the meanwhile, the notice is given and the acquisition proceedings are not initiated, the deeming provision will come into force under subsection (2) of Section 20. It is submitted that if the notice is given after the revised final development plan is sanctioned, then, in that case, the deeming provision will not be applicable before completion of 10 years. Once the revised draft development plan is sanctioned u/s.17 of the TP Act, the earlier final development plant does not remain and revised final development plan will come into force. The life of the earlier final development plan will come to an end and therefore, the period of 10 years, as specified in subsection (2) of Section 20 will commence from the date of the sanction of the revised final development plan and not on the date of the original final development plan.
7.4 Learned Senior Advocate Mr. Desai submitted that till the revised final development plan is sanctioned, the development plan would continue to be in operation, as has been held in the case of Ahmedabad Municipal Corporation v. Madhuriben A. Parikh, 1995 (2) GLR 1832. It was, therefore, submitted that the respondentauthority has not Page 18 of 61 79 of 122 C/LPA/1263/2011 JUDGMENT committed any illegality or impropriety while exercising powers under the provisions of the Act.
8. Mr. Kamal Trivedi learned Senior Advocate appearing with Mr. HS Munshaw for respondentSUDA submitted that Section 20 of the TP Act deals with "acquisition of land"
whereas, Section 21 requires "revision" of final development plan at least once in 10 years. It is submitted that both the Sections are required to be read conjunctively and not individually.
8.1 It is submitted by learned Senior Advocate Mr. Trivedi that Section 20 of the TP Act is an enabling provision inasmuch as the period fixed therein does not compel the authority to acquire the land within the prescribed period but, it only enables the owner to give notice for acquisition thereafter. What Section 20 of the TP Act contemplates is that if within 10 years from the date of coming into force of the final development plan the land is not acquired, the owner gets a right to serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of such notice, the land is not acquired or no steps are commenced for its acquisition, the reservation of the land shall be deemed to have lapsed.
Page 19 of 61
80 of 122
C/LPA/1263/2011 JUDGMENT
8.2 Learned Senior Advocate Mr. Trivedi submitted that the condition precedent for the running of time of 6 months u/s.20(2) is the service of a valid notice after the expiry of 10 years from the date of coming into force of the final development plan. Thus, there is no automatic lapsing of reservation u/s.20 of the TP Act. In other words, the absence of notice or service of invalid notice, will not be a bar for the authority to continue with the very reservation while undertaking the exercise of revision u/s.21 of the TP Act. There is nothing unreasonable in the fixation of period of 10 years by the legislature u/s.20 of the TP Act, which may, eventually, get extended in the absence of a valid notice as per Section 20(2) of the TP Act.
8.3 It is contended by learned Senior Advocate Mr. Trivedi that it was only after 06.03.2004 when the final development plan came into effect that the original petitioners began making representation for the release of land from reservation. The original petitioners could not have done so within the period of 10 years from 06.03.2004 and were bound to wait for the completion of 10 years on 05.03.2014, whereafter, the service of such notice would have allowed the running of time of 6 months.
Page 20 of 61
81 of 122
C/LPA/1263/2011 JUDGMENT
8.4 In support of his submissions, Mr. Kamal Trivedi learned Senior Advocate placed reliance upon the following decisions;
(I) Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association and others, 1988 (Supp.) SCC 55. In Paras - 6 & 7, the Apex Court observed as under;
"6. Aggrieved, the appellant carried an appeal to a Division Bench under s. 15 of the Letters Patent. Bharucha, J. speaking for himself and Desai, J. upheld the view of the learned Single Judge and held that the most crucial step was the application to be made by the Corporation to the State Government under s. 126(1) of the Act for acquisition of the land, it ought to have been taken within the period of six months commencing from July 4, 1977, the date of service of the purchase notice. That decision proceeds upon the view that the details of ownership or particulars of tenants are not required to be furnished in the purchase notice served by the owner or any person interested in the land. All that is required is that the owner or the person interested in the land must inform the authority that the land reserved for any plan under the Act had not been acquired by agreement within 10 years from the date on which the plan came into force and that proceedings for acquisition of such land under the Land Acquisition Page 21 of 61 82 of 122 C/LPA/1263/2011 JUDGMENT Act had not been commenced within that period. It has accordingly held that the purchase notice dated July 1, 1977 served by respondents nos. 47,the trustees, was a valid notice under s. 127 of the Act and therefore the period of six months specified in s. 127 commenced running from July 4, 1977, the date of service, and came to an end on January 4, 1978. That being so, it was held that upon the expiry of the period of six months on January 3, 1978, the reservation of the land for recreation ground lapsed and it was released from such reservation.
7. According to the plain reading of s. 127 of the Act, it is manifest that the question whether the reservation has lapsed due to the failure of the Planning Authority to take any steps within a period of six months of the date of service of the notice of purchase as stipulated by s.126, is a mixed question of fact and law. It would therefore be difficult, if not well nigh impossible, to lay down a rule of universal application. It cannot be posited that the period of six months would necessarily begin to run from the date of service of a purchase notice under s. 127 of the Act. The condition prerequisite for the running of time under s. 127 is the service of a valid purchase notice. It is needless to stress that the Corporation must prima facie be satisfied that the notice served was by the owner of the affected land or any person interested in the land. But, at the same time, s. 127 of the Act does not contemplate an investigation into title by the officers of the Planning Authority, nor can the officers prevent the running of time if there is a valid notice. Viewed in that perspective, the High Court rightly held that the Executive Engineer of the Municipal Corporation was not justified in addressing Page 22 of 61 83 of 122 C/LPA/1263/2011 JUDGMENT the letter dated July 29, 1977 by which he required respondents nos. 47, the trustees, to furnish information regarding their title and ownership, and also to furnish particulars of the tenants, the nature and user of the tenements and the total area occupied by them at present. The Corporation had the requisite information in their records. The High Court was therefore right in reaching the conclusion that it did. In the present case, the Planning Authority was the Municipal Corporation of Greater Bombay. It cannot be doubted that the Municipal Corporation has access to all land records including the records pertaining to cadastral survey no. 176 of Tardeo. We are inclined to the view that the aforesaid letter dated July 28, 1977 addressed by the Executive Engineer was just as attempt to prevent the running of time and was of little or no consequence. As was rightly pointed out by respondents nos. 47 in their reply dated August 3, 1977, there was no question of the period of six months being reckoned from the date of the receipt from them of the information requisitioned. The Municipal Corporation had been assessing the trust properties to property tax and issuing periodic bills and receipts therefor and obviously could not question the title or ownership of the trust. We are informed that the building being situate on Falkland Road, the occupants are mostly dancing girls and this is in the knowledge of the Corporation authorities. The rateable value of each tenement would also be known by an inspection of the assessment registers. We must accordingly uphold the finding arrived at by the High Court that the appellant having failed to take any steps, namely, of making an application to the State Government for acquiring the land under the Land Acquisition Act within a period of six months from the Page 23 of 61 84 of 122 C/LPA/1263/2011 JUDGMENT date of service of the purchase notice, the impugned notification issued by the State Government under s. 6 of the Land Acquisition Act making the requisite declaration that such land was required for a public purpose i.e. for a recreation ground was invalid, null and void."
(II) Girnar Traders v. State of Maharashtra and others, (2007) 7 SCC 555. In Paras - 11, 12, 30 & 31, the Apex Court observed as under;
"11. On 3.2.1998 the appellants served notice through their advocates under Section 127 of the MRTP Act asking for renotifying the property or to release the said property from reservation and accord sanction/approval to develop the property by the owner. In reply, the Municipal Corporation, Greater Mumbai informed the appellants that purchase notice issued by their advocates was invalid as ten years had not expired since the sanction of the revised development plan, came into force on 16.9.1991. On 18.10.2000, the appellants again served purchase notice under Section 127 of the MRTP Act. Again the Municipal Corporation of Greater Mumbai informed the appellants that the notice was invalid as the period of ten years had not lapsed from the date of the revised plan.
12. On 15.3.2002, the appellants addressed yet another notice to the Municipal Corporation, Greater Mumbai under Section 127 of the MRTP Act stating therein that ten years' period had lapsed on 16.9.2001 and since no proceedings for acquisition of the land as Page 24 of 61 85 of 122 C/LPA/1263/2011 JUDGMENT contemplated under Section 127(1) of the MRTP Act or under the Land Acquisition Act , 1894 (hereinafter referred to as "the LA Act") having been commenced nor has any award been made or compensation paid, the property should be dereserved. The purchase notice was served on the Municipal Commissioner, Greater Mumbai on 19.3.2002.
30. Section 127 of the MRTP Act which requires consideration in the present case is a provision which provides, as is clear from its heading itself, for lapsing of reservation of the lands included in the development plan. The development authority for utilization of the land for the purpose for which it is included in the plan has to take steps and do things within the period stipulated in a particular span of time, the land having been reserved curtailing the right of the owner of its user. Section 127 reads as under:
"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 Page 25 of 61 86 of 122 C/LPA/1263/2011 JUDGMENT 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."
31. Section 127 prescribes two time periods. First, a period of 10 years within which the acquisition of the land reserved, allotted or designated has to be completed by agreement from the date on which a regional plan or development plan comes into force, or the proceedings for acquisition of such land under the MRTP Act or under the LA Act are commenced. Secondly, if the first part of Section 127 is not complied with or no steps are taken, then the second part of Section 127 will come into operation, under which a period of six months is provided from the date on which the notice has been served by the owner within which the land has to be acquired or the steps as aforesaid are to be commenced for its acquisition. The sixmonth period shall commence from the date the owner or any person interested in the land serves a notice on the planning authority, development authority or appropriate authority expressing his intent claiming dereservation of the land. If neither of the things is done, the reservation shall lapse. If there is no notice by the owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. Second part of Section 127 stipulates that the reservation of the land under a development scheme shall lapse if the land is not acquired or no steps are taken for acquisition of the land within the period of Page 26 of 61 87 of 122 C/LPA/1263/2011 JUDGMENT six months from the date of service of the purchase notice. The word "aforesaid" in the collocation of the words "no steps as aforesaid are commenced for its acquisition" obviously refers to the steps contemplated by Section 126 of the MRTP Act."
9. Mr. Hardik Soni learned Asst. Government Pleader appearing on behalf of the respondentState adopted the submissions made by Mr. Kamal Trivedi learned Senior Advocate appearing for SUDA and Mr. Prashant Desai learned Senior Advocate appearing for respondentSMC.
10. Mrs. Ketty Mehta learned counsel appearing on behalf of respondents no.1, 2.4 & 3 in LPA No.1481 of 2013 and Mr. R.S. Sanjanwala learned counsel appearing on behalf of respondents no.1 & 2 in LPA No. 1361 of 2013 adopted the arguments canvassed by learned Senior Advocate Mr. R.R. Marshall appearing on behalf of the appellants, original land owners, in LPA No.1263 of 2011. The sum and substance of their submission is that the owner of a reserved land would not lose his right of getting the land defreezed by serving six months' notice u/s.20(2) of the Act, if there is any proposal by issuance of a draft revised final development plan within ten years or on expiry of ten years of the original development plan.
Page 27 of 61
88 of 122
C/LPA/1263/2011 JUDGMENT
10.1 It is their submission that previous operation of Sections 9 to 20 of the Act resulting into preparation of a final development plan would not nullify the right created in favour of the land owner to serve six months' notice for getting his land dereserved on subsequent revision of the plan pursuant to its commencement and expiry after ten years.
10.2 It is their submission that the mention of Section 20 in Section 21 of the Act for revision does not show any intention of the Legislature to curtail or take away the right already accrued in favour of a landowner u/s.22 of getting his land defreezed. Sections 9 to 21 of the Act, in course of revision of a development plan u/s.21, would be applicable to the extent rights have not already been created in favour of landowner u/s.20 on expiry of 10 years from the earlier final development plan and by serving of six months' notice with consequent failure of authority to acquire the land. 10.3 It is, therefore, contended on behalf of the private land owners that the landowners cannot go on waiting for further period of ten years from each revised development plan for the purpose of invoking his right of six months' Page 28 of 61 89 of 122 C/LPA/1263/2011 JUDGMENT notice u/s.20(2) of the Act, as and when the process of preparation of draft revised development plan commences u/s.21 of the Act before or on expiry of ten years' period counted from the earlier final development plan. Mere issuance of a draft revised final development plan u/s.21 of the Act by the authority shall not take away the right already accrued and vested in the landowner on expiry of 10 years period from the existing final development plan and failure of the authority to acquire the land in six months' notice period.
10.4 In support of the submissions, reliance has been placed on a reported decision of the Apex Court in the case of State of Maharashtra v. Bhakti Vedanta Book Trust and others, (2013) 4 SCC 676 and more particularly, on the observations made in Paras - 8, 10 & 15, which reads as under;
"8. We have heard learned counsel for the parties and perused the record. Section 126 of the 1966 Act, which provides for the acquisition of land required or reserved for any of the public purposes specified in any plan or scheme prepared under the Act and Section 127 of the 1966 Act, which envisages lapsing of reservation in certain contingencies read as under:Page 29 of 61
90 of 122 C/LPA/1263/2011 JUDGMENT "Section 126. Acquisition of land required for public purposes specified in plans. (1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A acquire the land,
(a) by an agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the landowner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor's interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Land Acquisition Act, 1894, Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Page 30 of 61 91 of 122 C/LPA/1263/2011 JUDGMENT Development Control Regulations prepared in this behalf provide, or
(c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894, and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this section or under the Land Acquisition Act, 1894, as the case may be, shall vest in the Planning Authority. Development Authority, or as the case may be, any Appropriate Authority.
(2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or if the State Government (except in cases falling under section 49 and except as provided in section 113A) itself is of opinion that any land in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894 (1 of 1894), in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section :
Provided that, subject to the provisions of subsection (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Page 31 of 61 92 of 122 C/LPA/1263/2011 JUDGMENT Development Plan or any other Plan, or Scheme, as the case may be.
(3) On publication of a declaration under the said section 6, the Collector shall proceed to take order for the acquisition of the land under the said Act; and the provisions of that Act shall apply to the acquisition of the said land, with the modification that the market value of the land shall be,
(i) where the land is to be acquired for the purposes of a new town, the market value prevailing on the date of publication of the notification constituting or declaring the Development Authority for such town;
(ii) where the land is acquired for the purposes of a Special Planning Authority, the market value prevailing on the date of publication of the notification of the area as an undeveloped area; and
(iii) in any other case the market value on the date of publication of the interim development plan, the draft development plan, or the plan for area or areas for comprehensive development, whichever is earlier, or as the case may be, the date or publication of the draft town planning scheme:
Provided that, nothing in this subsection shall affect the date for the purposes of determining the market value of land in respect of which proceedings for acquisition commenced Page 32 of 61 93 of 122 C/LPA/1263/2011 JUDGMENT before the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972 (Mah. XI of 1973):
Provided further that, for the purpose of clause (ii) of this subsection, the market value in respect of land included in any undeveloped area notified under subsection (1) of section 40 prior to the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972 (Mah. XI of 1973), shall be the market value prevailing on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to subsection (2) and in subsection (3), if a declaration is not made within the period referred to in subsection (2) or having been made, the aforesaid period expired at the commencement of the Maharashtra Regional Town Planning (Amendment) Act, 1993, the State Government may make a fresh declaration for acquiring the land under the Land Acquisition Act, 1894 (I of 1894), in the manner provided by subsections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring the land afresh.
Section 127. Lapsing of reservation - 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, Page 33 of 61 94 of 122 C/LPA/1263/2011 JUDGMENT 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 (1 of 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 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."
10. A writ petition filed by Dr. Hakimwadi Tenants' Association questioning the notification was allowed by the learned Single Judge of the Bombay High Court, who held that the acquisition proceedings commenced by the State Government under Section 126(2) of the 1966 Act at the instance of the Planning Authority were not valid because steps were not taken for the acquisition of land under Section 126(1) of the 1966 Act read with Section 6 of the 1894 Act within the prescribed time. The learned Single Judge observed that the period of six months prescribed under Section 127 of the 1966 Act began to run from the date of service of purchase notice and the Corporation had to take steps to acquire the property before 4.1.1978, which was not done. The Division Page 34 of 61 95 of 122 C/LPA/1263/2011 JUDGMENT Bench of the High Court approved the view taken by the learned Single Judge and held that the most crucial step was the application to be made by the Corporation to the State Government under Section 126(1) of the 1966 Act for the acquisition of the land and such step ought to have been taken within the period of six months commencing from 4.7.1977. This Court agreed with the counsel for the Corporation that the words 'six months from the date of service of such notice' used in Section 127 of the 1966 Act were not susceptible to a literal construction, but observed: (Hakimwadi Tenants' Assn. Case, SCC p.61, para 8) "8. ....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."
15. Recently, another three Judge Bench, of which both of us were members, considered the scope of Sections 126 and 127 of the 1966 Act in the Civil Appeal arising out of SLP(C) No.9934 of 2009 Shrirampur Municipal Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher and others and connected matters and reiterated the view expressed by the majority in Girnar Traders v. State of Page 35 of 61 96 of 122 C/LPA/1263/2011 JUDGMENT Maharashtra (supra). In the last mentioned judgment, the Court emphasized that if any private land is shown as reserved in the Development plan, the same can be acquired within 10 years either by agreement or by following the procedure prescribed under the 1894 Act and if proceedings for the acquisition of the land are not commenced within that period and a further period of six months from the date of service of notice under Section 127 of the 1966 Act, reservation will be deemed to have lapsed and the land will be available for development by the owner."
11. Before we embark upon the merits of the case, it would be beneficial to highlight certain facts which are undisputed.
12. In LPA No.1263/2011 : The principal development plan of SUDA was sanctioned in the year 1986, in which the land bearing Revenue Survey no.19(B) (new Revenue Survey No.57/2 paiki) of Village Rundh, Taluka & City : Surat, was reserved for "post and telegraph" vide "H45", which was revised under the provisions of Section 21 of the TP Act. In the year 1996, the revised draft development plan was submitted to the State Government by SUDA u/s.16 of the TP Act in which the land under reference was proposed for reservation for office building of "post and telegraph". However, in exercise of powers u/s.17(1)(a)(ii) of the TP Act, Page 36 of 61 97 of 122 C/LPA/1263/2011 JUDGMENT the State Government proposed certain modifications in the revised draft development plan submitted by SUDA and invited suggestions and objections on the proposed modifications by Notification, which was published in the Official Gazette on 17.05.2001. By Modification No.93, the State Government proposed to delete the earlier reservation and rereserve it "for residential use".
13. It appears that it was only a proposal of the State Government to delete the reservation and designate the land under reference "for residential use". On this proposal, the State Government invited objections and suggestions. Pursuant to the objections and suggestions so received, the State Government sanctioned the revised draft development plan of SUDA under the provisions of Section 17(1)(c) of the TP Act, by Notification dated 02.09.2004, which came into force from 15.09.2004. However, by the said Notification dated 02.09.2004, the State Government decided to continue with the reservation on the land under reference for office building of "post and telegraph".
14. Thereafter, on the proposal submitted by SUDA, by Notification dated 07.09.2009 issued u/s.19 of the TP Act, the State Government made variations in the development Page 37 of 61 98 of 122 C/LPA/1263/2011 JUDGMENT plan by which the land under reference was reserved "for public purpose of SMC" in place of office building of "post and telegraph" u/s.12(2)(k) of the TP Act.
15. In LPA No.1481/2013 : In respect of the subject lands, the first development plan came to be finalized in the year 1986 and they were reserved "for commercial purpose for SUDA" in the draft development plan. It was sanctioned by the State Government on 03.01.1986 and it came into force on 03.03.1986. Subsequently, the SUDA prepared a revised draft development plan and submitted it to the State Government u/s.16 of the TP Act. Subsequent to the submission of the revised draft development plan, the State Government published a modification in the development plan u/s.17 of the TP Act, through Notification dated 17.05.2001 and invited suggestions and objections to it. After following due procedure, the State Government sanctioned the revised development plan on 02.09.2004 and it came into force with effect from 15.09.2004.
16. It appears that when the exercise for revised draft development plan was initiated under the provisions of the TP Act in the year 1996, the State Government dropped the reservation of the subject lands while publishing the Page 38 of 61 99 of 122 C/LPA/1263/2011 JUDGMENT Notification dated 17.05.2001. However, while finalizing the revised draft development plan, the State Government thought it fit not to drop the reservation of the subject lands and continued the reservation as per the provisions of Section 20(2) of the TP Act. It also appears that SUDA had initiated steps for finalization of the subject lands in the year 1986 and Notifications u/s.4 and 6 of the Land Acquisition Act, 1894 were also issued. However, at a later point of time, the proceedings under the Land Acquisition Act were dropped in the year 1988 on the ground that the subject lands were declared surplus / excess under the provisions of the Urban Land Ceiling Act, 1976. However, the competent authority could not take possession of the subject lands on account of pendency of a writ petition being Special Civil Application No.281/1991 filed by the landowner before this Court. The said petition was disposed of in favour of the landowner, vide order dated 20.04.1999, as the Urban Land Ceiling Act had been repealed. Therefore, while issuing final Notification on 24.09.2001, the State Government continued reservation of the subject lands "for commercial purpose for SUDA". In this case, the first Notice u/s.20(2) of the TP Act came to be issued on 13.10.2007.
Page 39 of 61
100 of 122
C/LPA/1263/2011 JUDGMENT
17. In LPA No.1361/2013 : The subject lands bearing Survey No.86 paiki admeasuring 8012 sq. metres and Survey No.91 paiki admeasuring 1543 sq. metres at Rajkot I, Rajkot, were reserved by the Rajkot Urban Development Authority "for RUDA Site and Service Project" in the draft development plan, The draft development plan of RUDA was sanctioned vide Notification dated 27.04.1988. Subsequently, a revised draft development plan was prepared, which was sanctioned by the State Government vide Notification dated 20.02.2004 and it came into effect on 06.03.2004 wherein, the subject lands were again reserved for the same purpose. In this case, the first Notice u/s.20(2) of the TP Act came to be issued on 30.06.2006. REASONINGS :
18. Before proceeding further, a reference to Section 20 of the TP Act is apposite. It reads as under;
"20. Acquisition of land : (1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or Page 40 of 61 101 of 122 C/LPA/1263/2011 JUDGMENT clause (o) of subsection (2) of section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.
(2) If the land referred to in subsection (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.
18.1 The above provision specifically provides that after a period of ten years from the date of coming into force of the final development plan, the owner or any person interested in the land may issue a Notice on the authority concerned requiring it to acquire the land and if within a period of six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition under the Land Acquisition Act, the designation of the land Page 41 of 61 102 of 122 C/LPA/1263/2011 JUDGMENT would be deemed to have lapsed. Thus, Notice as envisaged under subsection (2) of Section 20 of the TP Act is a sine qua non for lapsing of reservation.
19. The main contention raised on behalf of the appellant original petitioner is that as the land under reference was put under reservation in the development plan since 1986, ie. for a period of more than 23 years, it could not have been rereserved "for public purpose for SMC" since the reservation had lapsed after a period of 10 years from the date of sanction of the original development plan. Though the contention sounds to be attractive but, it is without any merits. As such, there is no provision in the TP Act by which reservation of a land in the development plan lapses automatically after a period of 10 years. 19.1 The only provision which relates to lapse of reservation in the development plan is Section 20, more particularly, subsection (2) of the TP Act. As per subsection (2) of Section 20, if the land which is referred to in the development plan for any public purpose, is not acquired by agreement within a period of 10 years from the date of coming into force of the final development plan or if the proceedings under the Land Acquisition Act, 1894 are not Page 42 of 61 103 of 122 C/LPA/1263/2011 JUDGMENT commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice, the land is not acquired or no steps are commenced for its acquisition, the designation of the land shall be deemed to have lapsed.
20. It is to be noted that in the present case, admittedly, no such Notice as required u/s.20(2) of the TP Act has been served by the appellantoriginal petitioner. The aforesaid fact situation is also not disputed by learned Senior Advocate Mr. RR Marshall for the appellantoriginal petitioner. In Girnar Traders' case (supra), the Apex Court categorically held that considering similar provisions under the Maharashtra Regional and Town Planning Act, 1966 that if there is no notice by the owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. Hence, the contention on behalf of the appellant that after 10 years of sanction of the development plan, the reservation lapses automatically, cannot be accepted.
21. The Town Planning Act does not contemplate that any development plan which is prepared shall lapse at any point Page 43 of 61 104 of 122 C/LPA/1263/2011 JUDGMENT of time. It only contemplates the plan being varied u/s.19 by the State Government or a revised development plan being prepared by the area development authority u/s.21. When power is given, a duty is cast on the development authority, at least once in ten years, to revise the development plan. It does not mean that the development plan comes to an end at the end of 10 years. Section 21 is an enabling provision which casts a duty on the development authority to revise a plan at least once in 10 years. The revision can take place more than once but if the authority, for reasons best known to itself, chooses not to revise a development plan, the effect of it would not be that the plan would lapse. The plan would continue to be in operation till it is either revised u/s.21 or varied u/s.19.
22. It appears from the record that at no point of time, either in the year 1996 or in 2001 or in 2004, the appellant original petitioner had raised any objection against the continuation of reservation. If the appellant had any grievance against such reservation, he ought to have raised necessary objection, by availing the remedy provided under Section 20 of the TP Act, in the form of calling upon the appropriate authority to acquire the land by issuing Notice under subsection (2). However, no such steps were taken Page 44 of 61 105 of 122 C/LPA/1263/2011 JUDGMENT by the appellantoriginal petitioner. Therefore, at this stage, it is not open to the appellant to raise grievance against the continuation of reservation. For a period of almost 23 years, the original petitioner did nothing and suddenly, he woke out of slumber in the year 2010 when Notice was served upon him by the respondentCorporation for negotiation u/s.77 of the BPMC Act.
23. Once the appellantoriginal petitioner had failed to submit the objections in pursuance of the Notification dated 01.07.2009 and thereby, permitted the variations in the development plan, it would tantamount to Elvis having left the building for the appellant. The inaction of the appellant original petitioner would disentitle him from obtaining an equitable relief, particularly, when the entire event has come to an irreversible situation. The appellant had the right to serve Notice as required u/s.20(2) of the TP Act. However, the appellant had failed to avail such remedy and therefore, now, it is not open for the appellantoriginal petitioner to contend that the continuation of reservation is illegal or for that matter, the variation in the purpose is unreasonable.
24. A person may waive a right either expressly or by Page 45 of 61 106 of 122 C/LPA/1263/2011 JUDGMENT necessary implication. He may, in a given case, disentitle himself from obtaining an equitable relief, particularly, when he allows a thing to come to an irreversible situation. If a claim is not filed, the person, who is said to be injuriously affected, does so at its own peril. Therefore, the contention raised by appellantoriginal petitioner that statutory right cannot be waived is devoid of any merits as it would amount to waiver only.
25. In the present case, we find that the appropriate authority has completely followed the procedure, as required under the provisions of the TP Act while reserving the land under reference "for public purpose for SMC". Before the land under reference was proposed to be varied, suggestions and objections were invited vide Notification dated 01.07.2009. At that point of time, the appellant original petitioner had never raised any objection. It was only after following due procedure that Notification in exercise of powers u/s.19 of the TP Act was issued by the authority whereby, the land under reference was put under reservation "for public purpose for SMC".
26. It is by now wellsettled that continuation of reservation in the development plan is permissible subject Page 46 of 61 107 of 122 C/LPA/1263/2011 JUDGMENT to the provisions of Sections 20 and 21 of the TP Act. Section 20 of the TP has been reproduced herein above and for ready reference, Section 21 is reproduced here under;
"21. Revision of development plan : At least 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, apply to such revision."
27. As is clear from the above proviso, the only requirement u/s.21 of the TP Act is to "revise" the development plan on completion of every ten years. A conjoint reading of Sections 19 and 21 of the TP Act would imply that at least once in ten years from the date on which a final development plan comes into force, the area development authority is required to revise the development plan, after carrying out, if necessary, a fresh survey. While revising the development plan, if the area development authority is of the opinion that the development plan is required to be varied, then the procedure provided u/s.19 of the TP Act is required to be followed. The TP Act no where Page 47 of 61 108 of 122 C/LPA/1263/2011 JUDGMENT provides that designation of a land would lapse automatically.
28. If Section 20 is interpreted in the language of learned Senior Advocate Mr. Marshall, then Section 21 would become otiose. It was never the intent of the Legislature to get a designation lapse automatically. The purpose behind providing such revision is to insulate the public authority, which is entrusted with the duty of carrying out developmental activities, with necessary safeguards so as to meet the challenges of changing times. By providing such revision, the public authority gets the opportunity to identify the developmental requirements of different areas and to take necessary steps accordingly. Hence, the interpretation of Sections 20 & 21, as made by learned Senior Advocate Mr. Marshall, is without any substance.
29. Before the learned single Judge, we find that the appellantoriginal petitioner (In SCA No.16748 of 2010) had not challenged the Notification dated 07.09.2009 issued u/s.19 of the TP Act by which the development plan has been varied and the land under reference, which was earlier reserved for "post and telegraph", is now reserved "for public purpose for SMC". In the writ petition, the original petitioner Page 48 of 61 109 of 122 C/LPA/1263/2011 JUDGMENT had only prayed for an appropriate order holding and declaring that the land under reference is free from reservation and that the original petitioner is entitled to use it for residential purpose.
30. Another contention was raised on behalf of the appellantoriginal petitioner that the action of continuing reservation of the land under reference for a number of years is unreasonable and also violative of the right to acquire and use property, which is considered to be a human right. Very recently, in the case of Ahmedabad Municipal Corporation and another v. Ahmedabad Green Belt Khedut Mandal and others, AIR 2014 SC 2377, the Apex Court in para28 observed as under;
"28. Article 300A of the Constitution though creates a human right being a constitutional provision, but is not a fundamental right. Article 300A provides that no person can be deprived of his property except by authority of law. The Town Planning Act is definitely an authority of law by which a person is deprived of his property if we assume that the town planning scheme deprives a person of his property, though it is not so in view of the judgments of this Court in Shantilal Mangaldas (supra) and Prakash Amichand Shah (supra)."Page 49 of 61
110 of 122 C/LPA/1263/2011 JUDGMENT
31. It is a settled legal position that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the Court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective meaning to every word of the provision. The important factor is that the action should be with due authority of law.
32. We have no doubts in our minds that the authority concerned is empowered to acquire land by following due procedure as prescribed under the TP Act. As discussed in the foregoing paragraphs, it was only after following due procedure that Notification in exercise of powers u/s.19 of the TP Act was issued by the authority whereby, the land under reference was put under reservation "for public purpose for SMC". It does not appear that the appropriate authority has flouted any of the provisions of the TP Act while designating the land under reference. Hence, the contention raised by the appellantoriginal petitioner that his human right has been violated cannot be accepted.
Page 50 of 61
111 of 122
C/LPA/1263/2011 JUDGMENT
33. The appellantoriginal petitioner has also raised a contention that the land in question was continued under reservation for number of years and he was not permitted to use the said land, and therefore, now, it is not open for the appropriate authority to again rereserve the land for "public purpose for SMC". It is true that the land in question was continued under reservation for "post and telegraphs" for number of years. However, it is to be noted that such continuation of reservation in the development plan is permissible. Unless the plan is revised u/s.21 and / or the same is varied u/s.19 of the TP Act, the reservation and the development plan continues and it does not lapse.
34. As discussed herein above, for all these years, the appellantoriginal petitioner had neither raised any objection nor had served any Notice as envisaged under subsection (2) of Section 20 of the TP Act. Therefore, at this stage, it is not open for the appellantoriginal petitioner to make any grievance with respect to continuation of reservation for number of years, which, otherwise, is permissible under the provisions of the Gujarat Town Planing Act.
35. The land under reference is now designated "for public Page 51 of 61 112 of 122 C/LPA/1263/2011 JUDGMENT purpose for SMC". Immediately after issuing Notification dated 07.09.2009, respondentSurat Municipal Corporation initiated proceedings for acquiring the land, initially, by negotiations u/s.77 of the BPMC Act and the appellant original petitioner was also called upon for negotiations. However, the negotiations failed and therefore, the land under reference is now being required u/s.78 of the BPMC Act. It is at this stage that the appellantoriginal petitioner had preferred the captioned writ petition being SCA No.16748/2010 and until then the appellantoriginal petitioner was dormant.
36. Insofar as the principle rendered in Bhavnagar University Vs. Palitana Sugar Mills Pvt. Ltd. and Ors.'s case (supra) is concerned, the same shall not be applicable to the facts of the present case. In the abovereferred case, on or about 03.03.1986, the development plan was published in terms of the provisions of the TP Act and the period of ten years therefrom was to lapse on 02.03.1996. But, before the expiration of ten years from the date of publication of the final development plan on 03.03.1986, a revised development plan came into being on 20.02.1996. The owners of the land invoked Section 20(2) of the TP Act by issuing Notice asking the State Government to acquire the Page 52 of 61 113 of 122 C/LPA/1263/2011 JUDGMENT lands. In the backdrop of these facts, the Supreme Court held that the revised development plan could not have been published before expiration of ten years, ie. 02.03.1996. Since the revised development plan, before expiration of ten years from the publication of the final development plan was held to be bad, the Notice u/s.20(2) of the TP Act was held to be perfectly valid. Whereas, in the present case, admittedly, no Notice u/s.20(2) of the TP Act at all has been issued by the original landowner and after expiration of ten years from the date of publication of the final development plan, the process of revised development plan was undertaken and in fact, the plan has been revised in the year 2004 and therefore, it cannot be held that after expiration of ten years from the date of publication of first development plan, the reservation has lapsed since the authorities have not taken any steps either to acquire the land or initiated process under the Land Acquisition Act. Therefore, the aforesaid decision shall not be of any help to the appellant.
LPA No.1481/2013 :
37. In this matter, the first development plan came to be finalized in the year 1986. The subject lands were reserved "for commercial purpose for SUDA" in the draft development Page 53 of 61
114 of 122 C/LPA/1263/2011 JUDGMENT plan of SUDA, which was sanctioned by the State Government on 03.01.1986 and which came into force on 03.03.1986. Subsequently, SUDA prepared a revised draft development plan and submitted it to the State Government u/s.16 of the TP Act. Subsequent to the submission of the revised draft development plan, the State Government published a modification in the plan u/s.17 of the TP Act through Notification dated 17.05.2001 and invited suggestions and objections to it. After following due procedure, the State Government sanctioned the revised development plan on 02.09.2004 and it came into force with effect from 15.09.2004.
38. It appears that when the exercise for revised draft development plan was initiated under the provisions of the TP Act in the year 1996, the State Government dropped the reservation of the subject lands while publishing the Notification dated 17.05.2001. However, while finalizing the revised draft development plan, the State Government thought it fit not to drop the reservation of the subject lands and continued the reservation as per the provisions of Section 20(2) of the TP Act.
39. It also appears that SUDA had initiated steps for Page 54 of 61 115 of 122 C/LPA/1263/2011 JUDGMENT finalization of the subject lands in the year 1986 and Notifications u/s.4 and 6 of the Land Acquisition Act, 1894 were also issued. However, at a later point of time, the said proceedings under the Land Acquisition Act were dropped in the year 1988 on the ground that the subject lands were declared surplus / excess under the provisions of the Urban Land Ceiling Act, 1976. However, the competent authority could not take over possession of the subject lands on account of the pendency of writ petition being Special Civil Application No.281/1991 filed by the landowner before this Court. The said petition was disposed of in favour of the landowner, vide order dated 20.04.1999, as the Urban Land Ceiling Act had been repealed. Therefore, while issuing the final Notification on 24.09.2001, the State Government continued reservation of the subject lands "for commercial purpose for SUDA".
40. While entertaining the writ petition being Special Civil Application No.7088/2008, the learned single Judge in Para16 observed as under;
"16. Applying the aforesaid principles to the facts of the present case, the final development plan came to be sanctioned on 3 rd January, 1986 and came into Page 55 of 61 116 of 122 C/LPA/1263/2011 JUDGMENT force on 3 rd March, 1986. Accordingly, the ten year period came to an end on 4 th March, 1996. Thereupon, a right came to be created in favour of the land owners under section 20 of the Town Planning Act to serve six months notice to the authorities to acquire the subject land, failing which, the reservation would be deemed to have lapsed. The framing of revised development plan subsequent to the period of ten years from the first final development plan and sanctioning thereof, would not take away the rights of the petitioners under sub section (2) of section 20 of serving notice thereunder to the respondent authorities to acquire the subject lands. Accordingly, the petitioners served notice dated 13th October, 2007 under subsection (2) of section 20 of the Town Planning Act to the respondent authorities requiring them to acquire the subject lands. However, the respondent authorities failed to acquire the subject lands or to commence steps to acquire them. Consequently, upon failure to comply with the said notice, the provisions of subsection (2) of section 20 came into operation and the reservation is deemed to have lapsed. For the reasons stated hereinabove, the contention that the revised final development plan having been sanctioned in the year 2004, the ten year period would expire only in the year 2014 does not merit acceptance."
41. From the above observations, it is clear that the learned single Judge dereserved the subject lands mainly on the ground that the final development plan of SUDA, which was sanctioned by the State Government on 03.01.1986 and which came into force on 03.03.1986, came Page 56 of 61 117 of 122 C/LPA/1263/2011 JUDGMENT to an end on 04.03.1996 and thereupon, a right was created in favour of the landowners to avail the remedy under sub section (2) of Section 20. At that time, no Notice u/s.20(2) of the TP Act was issued by the landowner.
42. It appears that the learned single Judge lost sight of the fact that the development plan was revised u/s.21 of the TP Act and the revised draft development plan was sanctioned by the State Government on 02.09.2004 and it came into force with effect from 15.09.2004. Therefore, effectively, the final development plan would lapse only on 14.09.2014 and not prior thereto.
43. The very first Notice u/s.20(2) of the TP Act was issued only on 13.10.2007, during which time, the final development plant was in force and was due to lapse only on 14.09.2014. Hence, the Notice was premature. The remedy u/s.20(2) of the TP Act, therefore, would fall due only after 14.09.2014 and not prior thereto. Hence, the learned single Judge has committed serious error in allowing Special Civil Application No.7088/2008. LPA No.1361/2013 :
44. In LPA No.1361/2013, the subject lands were reserved Page 57 of 61 118 of 122 C/LPA/1263/2011 JUDGMENT "for RUDA Site and Service Project". The draft development plan was sanctioned vide Notification dated 27.04.1988. Subsequently, a revised draft development plan was prepared, which was sanctioned vide Notification dated 20.02.2004 and which came into effect on 06.03.2004 wherein, the subject lands were again reserved for the same purpose. The first Notice u/s.20(2) of the TP Act came to be issued on 30.06.2006. The facts of the present case and the facts narrated in LPA No.1481/2013 are almost similar. While entertaining Special Civil Application No.3974/2010, the learned single Judge in para8 observed as under;
"8. Applying the principles laid down in the above decisions to the facts of the present case, as noticed earlier, the final development plan came to be sanctioned on 27.04.1988. Accordingly, the period of ten years came to an end on 26.04.1998. Thereupon, a right came to be created in favour of the petitioners under subsection (2) of section 20 of the Town Planning Act to serve six months notice to the authorities to acquire the subject lands, failing which, the reservation would be deemed to have lapsed. The framing of the revised development plan subsequent to the period of ten years from the first development plan and sanctioning thereof would not take away the rights of the petitioners under subsection (2) of section 20 of the Town Planning Act of serving a notice thereunder to the respondents to acquire the subject lands. Accordingly, the petitioners served the notices dated Page 58 of 61 119 of 122 C/LPA/1263/2011 JUDGMENT 30.06.2006, 01.09.2006 and 24.11.2006 to the respondent authorities under subsection (2) of section 20 of the Town Planning Act requiring them to acquire the subject lands. However, the respondent authorities failed to acquire the subject lands or to commence the steps to acquire them. Consequently, upon failure to comply with the said notices, the provisions of sub section (2) of section 20 of the Town Planning Act came into operation and the reservation is deemed to have lapsed. For the reasons stated hereinabove, the contention that the revised final development plan having been sanctioned in 2004, the ten years period would expire only in the year 2014, does not merit acceptance.
45. In the instant case, the final development plan lapsed on 05.03.2014. The very first Notice u/s.20(2) of the TP Act was issued on 30.06.2006, during which time, the final development plant was in force. Hence, the Notice was premature. The remedy u/s.20(2) of the TP Act, therefore, had fallen due only after 05.03.2014 and not prior thereto.
Hence, the learned single Judge has committed serious error in allowing Special Civil Application No.3974/2010.
46. In present day times, suffice it to say that public bodies are short of funds on account of widespread modernization resulting into delay in completion of essential projects. The public bodies have to wait for funds from the Page 59 of 61 120 of 122 C/LPA/1263/2011 JUDGMENT State Government to commence and complete the projects.
In some cases, the projects relate to essential works like hospitals, health centers, environment, roads & infrastructure, schools / education, etc. It becomes necessary to grant sufficient reasonable time to the public bodies so that essential projects, which are in the larger public interest, could be completed and therefore, the need is kept u/s.21 of the TP Act to revise the final development plan at least once in ten years. It is well known fact that on certain occasions, land owners prevail upon the local authorities and cause delay in projects, which is detrimental to public interest. Considering the facts of the case and the scheme of the TP Act, we are of the opinion that the judgment and order under challenge in LPA No.1263/2011 deserves to be confirmed while quashing and setting aside the judgment and order under challenge in LPAs No.1481/2013 and 1361/2013.
47. For the foregoing reasons, the following order is passed;
(A) LPA No. 1263/2011 is dismissed and the judgment and order rendered in SCA No.16748/2010 dated 13.06.2011 stands confirmed. It shall be open to Page 60 of 61 121 of 122 C/LPA/1263/2011 JUDGMENT the appellantoriginal petitioner to issue Notice u/s.20(2) of the TP Act to the appropriate authority since the period of ten years of reservation lapses on 02nd September 2014.
(B) Letters Patent Appeals No.1481/2013 and 1361/2013 are allowed and the impugned judgment and orders rendered in Special Civil Applications No.7088/2008 dated 07.05.2013 and No.3974/2010 dated 18.07.2013 are quashed and set aside. At this stage, Mr. Apurva Kapadia learned counsel requests for stay of this order for a reasonable period. However, since the reservation has already lapsed on 05.03.2014, there does not lie any question of granting stay of the order. Hence, the request is not considered.
(C) In view of the order passed in LPA No.1481/2013, the Civil Application does not survive and is, accordingly, disposed of.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) Pravin/* Page 61 of 61 122 of 122