Gujarat High Court
Municipal Corporation Of The City Of ... vs Smt. Madhuriben A. Parikh on 1 August, 1995
Equivalent citations: (1995)2GLR1832
Author: B.N. Kirpal
Bench: B.N. Kirpal, H.L. Gokhale
JUDGMENT B.N. Kirpal, C.J.
1. In this bunch of Letters Patent Appeals, the short question which arises for consideration is as to whether the reservation of land as notified in the development plan of 1983 for the Ahmedabad Municipal area lapses after the expiry of 10 years therefrom or whether after State Government had in 1987 issued a notification for the Ahmedabad Urban Development Authority (hereinafter referred to as 'AUDA') the same gets extended to a further period of 10 years calculated from 1987.
2. The facts are that under the provisions of the Bombay Town Planning Act, 1954, (hereinafter referred to as the Bombay Act) the Ahmedabad Municipal Corporation prepared a draft development plan for the City of Ahmedabad which was within the jurisdiction. This draft plan was notified on 15th January 1976. In the said draft plan the land which was owned by the respondents was shown to be reserved for some specific public purposes. Pursuant thereto, a notification was issued on 31st March 1976 under Section 4 of the Land Acquisition Act, 1894 for acquiring the land for the said public purposes. This was followed by notification dated 27th March 1979 under the provisions of Section 6 of the Land Acquisition Act. These proceedings came to an end when on 4th October 1986 a notification was issued under Section 48 of the Land Acquisition Act withdrawing the land from acquisition under said Act. The withdrawal was followed by a letter dated 9-10-1991 to the State Government to acquire the land under the Urban Land Ceiling Act.
3. In the meantime, the Gujarat Town Planning and Urban Development Act, 1976, had been promulgated and it had come into force (hereinafter referred to as the Gujarat Act). By notification dated 30th January 1978, the Ahmedabad Urban Development Authority (AUDA) was constituted under Section 22 of the said Act. Under the provisions of Section 22, this was the only authority which could exercise jurisdiction in relation to the urban development for the urban area for which it was constituted.
4. The area of the Ahmedabad Municipal Corporation (hereinafter referred to as AMC) falls within the ambit of AUDA for which now, by virtue of Section 22 of the Gujarat Act the jurisdiction is vested with the AUDA. It is the case of the appellants that on 23rd July 1981 a draft development plan was prepared by AUDA, which included amongst other the Ahmedabad Municipal Corporation area also. According to the appellants, this draft development plan had been published under Section 13 of the Gujarat Act and objections were invited.
5. It appears that on 12th August 1983, the State Government issued a notification under Section 17(1)(c) of the Town Planning Act whereby it sanctioned the draft revised development plan which had been notified by the Ahmedabad Municipal Corporation on 15th January 1976. It also finalised the modifications which had been proposed to the said draft development plan.
6. On 2nd November 1987 the Government of Gujarat issued another notification under Section 17(1)(c) of the Gujarat Act in which reference was made to the draft development plan which had been prepared by the AUDA on 23rd July 1981. In the said notification the modifications which were proposed to the draft development plan were also mentioned and by this notification of 2nd November 1987 the said draft development plan of 23rd July 1981 was sanctioned and the modifications to the same were finalised. In this notification it was stated that sanction was accorded to the draft development plan as set out in the Schedule appended thereto. The Schedule reads as follows:
Modification in the draft development plan of the urban development area of Ahmedabad Urban Development Authority except the area of Ahmedabad Municipal Corporation that existed till 22nd February 1986, as finalised by the State Government.
(underlining supplied)
7. It is not in dispute that the effect of finalisation of a draft development plan is that the land which falls within the development area can be used only for the purposes specified in the plan. The contents of the draft development plan have to be in accordance with the provisions of Section 12 of the Act. The said plan indicates the manner in which the use of the land is to be regulated and under Sub-section (2) of Section 12 there are various clauses which provide for various matters relating to the use of the land. These matters are provided in Sub-clauses (a) to (o) of Sub-section (2) of Section 12 of Gujarat Act.
8. A development plan can provide for user of land for some specific public purposes. Some of these public purposes are those mentioned in Clauses (b), (d), (k) and (n) of Section 12(2) of the Act. According to Section 20 of the Act the land which is designated for the purposes specified in these clauses can be acquired either by agreement or under the Land Acquisition Act. This also gives a right to the owner of the land to ask for acquisition in case the power of acquisition is not exercised by the State. The said Section 20 reads as follows:
20. (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 (k) or Clause (n) of Sub-section (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 Sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894 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 acquisition, the designation of the land as aforesaid shall be deemed to have lapsed.
Thus, the designation of the land for its specified user lapses after expiry of six months from service of notice by the land owner calling upon the authority to acquire the land.
9. The case of the respondent-land owner is that with the issuance of the notification dated 12th August 1983, their lands fell in Clause (b) and/or (k) of Section 12(2) as the said land was reserved for municipal housing and since within 10 years of the finalisation of the said plan no steps had been taken to acquire the land, the said respondents had issued notices under Section 20(2) of the Act. It is an accepted position that notices were received but even after six months of the date of service thereof no steps were taken for acquisition of the lands and the earlier steps which had been taken for acquiring the land had lapsed with the issuance of the notification on 4th October 1986 under Section 48 of the Land Acquisition Act, 1894.
10. The respondents had thereafter submitted the building plans to the Ahmedabad Municipal Corporation for its approval which would have enabled the respondents to raise the construction on the said lands. This approval was not granted and it is thereafter that the writ petitions were filed in this Court under Article 226 of the Constitution leading to this group of Letters Patent Appeals.
11. The case of the respondents was that with the period of six months having lapsed after the issuance of the notice under Section 20(2) of the Act, the land got released from its designation and the respondents were entitled to raise construction thereon and the restriction under the development plan did not any longer apply.
12. The first writ petition, Special Civil Application No. 13480 of 1993 was allowed by Section D. Dave, J. by his judgment dated 14th February 1995 reported in 1995 (1) GLR 880. The learned single Judge came to the conclusion that after the draft plan has been finalised in the year 1983, "the development plan and the designation of the land in that respect have lapsed under Section 20 of the Act of 1976, and that, therefore the respondents could not have refused to sanction the building plans submitted by the petitioners on that count." A direction was issued to the Ahmedabad Municipal Corporation to consider the granting of permission for the building activity on the plans which were submitted by the respondents.
13. A bunch of other writ petitions were decided by N.N. Mathur, J. by the judgment dated 17th February 1995 who followed the aforesaid decision of S.D. Dave, J. and came to the conclusion that the Ahmedabad Municipal Corporation should ignore the reservation in the development plan and should sanction the building plans in accordance with law.
14. The third Judge to decide the similar matters was M.R. Calla, J. who, by his judgment dated 9th March 1995 in Special Civil Application No. 13451 of 1994 Bhikhubhai Shamalbhai Patel v. State of Gujarat 1995 (2) GLR 1694 also came to the conclusion that the power of the appellants herein came to an end and the designation lapsed in 1993. He, however, also observed that the land in question would be subjected to the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976, and the writ petitioners would be bound to discharge their obligations and take appropriate steps with regard to the land under the U.L.C. Act and that the concerned competent authority and the Government of Gujarat would be at liberty to take proceedings in accordance with law.
15. The appeals have been filed against the said decisions by the State of Gujarat, Ahmedabad Municipal Corporation as well as by AUDA. The learned Advocate General has contended, while appearing on behalf of the State of Gujarat, that the observation of S.D. Dave, J. to the effect that the development plan had lapsed in the year 1993 was not correct as a development plan does not lapse. He further submitted that conclusion of M.R. Calla, J. to the effect that the land in question would be subject to the provisions of the Urban Land Ceiling Act was a correct conclusion and the same should be applied in all cases.
16. On behalf of AUDA the main contention raised by Mr. Shelat and adopted by Mr. Desai on behalf of AMC is that the AUDA came into existence in 1978 and thereafter it exercised the power under Section 22 of the Gujarat Act. When it prepared a draft plan in the year 1981, the AUDA incorporated into it the draft plan which had earlier been prepared by Ahmedabad Municipal Corporation in 1976. The objections were invited to this draft plan of 1981 including those with regard to the areas which were in Ahmedabad Municipal Corporation draft plan of 1976 and such objections had been filed. Thereafter in 1987 the State Government approved the draft plan prepared by AUDA in 1981 and this sanctioned plan incorporated within it the plan regarding the areas of Ahmedabad Municipal Corporation which had been prepared by Ahmedabad Municipal Corporation and which was sanctioned earlier in 1983. Therefore, it was submitted that the period of 10 years envisaged under Section 20 of the Gujarat Act should be reckoned from 1987 and not with effect from 1983. It was as if a fresh lease of life was granted.
17. Before dealing with the rival contentions, it is necessary to briefly refer to the relevant provisions of the Gujarat Act. Chapter II of the said Act deals with development area and constitution of area development authorities. Such an authority is normally constituted under Section 5 but under Section 6 the State Government may designate any local authority to be an area development authority for any development area. A draft plan is first prepared after the area has been declared as a development area. This plan which is prepared under Section 9 is kept for inspection of the public and the same is also published in the official gazette and in any other manner which may be prescribed, and under Section 13(1) notices are issued inviting suggestions from the public or objections with respect thereof. When the objections are received, the authority or the officer concerned are expected to consider the suggestions or objections and may modify the draft plan as it or he may think fit. If the modifications that are made are extensive or substantial in nature then, such modifications are once again published in the official gazette for the purpose of inviting suggestions or objections thereon which are again considered and the draft plan along with the modifications is then forwarded under Section 16 of the Act to the State Government for sanction.
18. The power of sanctioning the draft development plan and finalizing the modifications rests only with the State Government. This power is exercised under Section 17, the relevant provisions of which read as follows:
17(1)(a) On receipt of the draft development plan, under Section 16, the State Government may, by notification,-
(i) sanction the draft development plan and the regulations so received, within the prescribed period for the whole of the area covered by the plan or separately for any part thereof, either without modifications, or subject to such modifications, as it may considered proper; or
(ii) return the draft development plan and the regulations to the area development authority or, as the case may be, to the authorised officer, for modifying the plan and the regulations in such manner as it may direct:
Provided that, where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary, the State Government may, instead of returning them to the area development authority or, as the case may be, the authorised officer under this sub-clause, publish the modifications so considered necessary in the Official Gazette along with a notice in the prescribed manner inviting suggestions or objections from any person with respect to the proposed modifications within a period of two months from the date of publication of such notice; or
(iii) refuse to accord sanction to the draft development plan and the regulations and direct the area development authority or the authorised officer to prepare a fresh development plan under the provisions of this Act.
(b) Where a development plan and regulations are returned to an area development authority, or, as the case may be, the authorised officer, under Sub-Clause (ii) of Clause (a) the area development authority, or, as the case may be, the authorised officer, shall carry out the modifications therein as directed by the State Government and then submit them as so modified to the State Government for sanction; and the State Government shall thereupon sanction them after satisfying itself that the modifications suggested have been duly carried out therein.
(c) Where the State Government has published the modifications considered necessary in a draft development plan as required under the proviso to Sub-clause (ii) of Clause (a), the State Government shall, before according sanction to the draft development plan and the regulations, take into consideration the suggestions or objections that may have been received thereto, and thereafter accord sanction to the draft development plan and the regulations in such modified form as it may consider fit.
(d) The sanction accorded under Clause (b) or Clause (c) shall be notified by the State Government in the Official Gazette and the draft development plan together with the regulations so sanctioned shall be called the final development plan.
(e)The final development plan shall come into force on such date as the State Government may specify in the modification issued under Clause (d):
Provided that the date so specified shall not be earlier than one month from the date of publication of such notification.
(2) Where the draft development plan submitted by an area development authority or, as the case may be, the authorised officer contains any proposals for the reservation of any land for a purpose specified in Clause (b) or Clause (n) of Sub-section (2) of Section 12 and such land does not vest in the area development authority, the State Government shall not include the said reservation in the development plan, unless it is satisfied that such authority would acquire the land, whether by agreement or compulsory acquisition, within ten years from the date on which the final development plan comes into force.
(3) A final development plan which has come into force shall, subject to the provisions of this Act, be binding on the area development authority concerned and on all other authorities situated in the area of the development plan.
(4) After the final development plan comes into force, the area development authority may execute any work for developing, re-developing or improving any area within the area covered by the plan in accordance with the proposals contained in the development plan.
19. The other sections which are relevant are Section 18 which gives the power to the State Government to extend or reduce the area in respect of which the development plan has been prepared and Section 19 which gives the State Government the power to vary the final development plan in public interest. Whenever such variation is proposed, a notice is required to be given under Sub-section (1) of Section 19 inviting suggestions or objections, and after the same are considered the State Government sanctions the variation with or without modifications and if any person has been affected by the variation and has incurred any expenditure for complying with the final development plan, he would be entitled to receive compensation.
20. The other relevant provision in Section 21 which reads as follows:
21. Atleast once in ten years from the date on which a final development plan comes into force, the area development authority shall revise the development plan after carrying out, if necessary, a fresh survey and the provisions of Sees. 9 to 20, shall, so far as may be, apply to such revision.
21. Upon reading the aforesaid provisions of Sees. 9 to 20 together, the Scheme of the Act appears to be as follows:
A development plan, before it goes into operation, is first prepared and the draft of it is published. At the stage of this preparation the members of the public need not be consulted and it is only after the publication under Section 13 that the suggestions and objections are invited from the members of the public. The same are then considered by the authority which has proposed the plan and after it takes the decision with regard to the modifications which may be suggested, the draft plan along with the proposed modifications is submitted to the State Government for its approval under Section 17. Once the State Government issues the notification under Section 17(1)(c), the development plan becomes final and binding on all the parties including the area development authority and all the authorities in the particular plan area. Of course, as per Sub-section (3) of Section 17, the same is subject to the provisions of the Act. This would mean that the variation or alteration or change in the development plan which has been once finalised can be made only in accordance with the provisions of the Act. The two provisions which are relevant in this behalf would be Section 19 and Section 21.
22. It will be also seen that the Act does not contemplate that any development plan which is prepared shall lapse at any point of time. It only contemplates the plan being varied under Section 19 by the State Government or a revised development plan being prepared by the area development authority under Section 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, as has already been observed, 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, as has already been observed, it is either revised under Section 21 or varied under Section 19. In this view of the matter, we are unable to accept the conclusion of S.D. Dave, J. as correct, namely, that the development plan had lapsed after ten years.
23. The Gujarat Act applies to whole of State of Gujarat. There are various local authorities who may be empowered under Section 6 to frame development plans or separate development authorities can also be constituted under Section 5. What has happened in the present case is that the AUDA has been constituted under Section 20(2) in 1978. The development area for which AUDA has been constituted includes not only the area over which the Municipal Corporation of Ahmedabad has jurisdiction but other adjoining areas as well which are being looked after by different local authorities like Panchayats etc. With the establishment of this Authority, the entire responsibility of development in this urban development area would now rest with it. While the power of varying a development plan under Section 19 is with the State Government, the power to revise a development plan under Section 21 can only be exercised by AUDA.
24. What is the effect or implication of the notification issued on 12 August 1983 prepared by A.M.C.? As we have noticed, after the promulgation of the Act and the establishment of AUDA it is only AUDA which has the authority to prepare a development plan. This, however, is subject to the provision of Section 124 of the Gujarat Act which contains the repeal and saving clauses. By virtue of Section 124(2) any action which has been taken or was proposed to be taken under the provisions of the Bombay Act would continue and would be regarded as having been taken under the corresponding provisions of the Gujarat Act. Inasmuch as the A.M.C. had prepared a draft plan under the Bombay Act, those proceedings continue notwithstanding the fact that AUDA has come into existence in 1978.
25. In 1983, the State Government had before it two draft plans: The first draft plan was dated 15th January 1976, prepared by the A.M.C. and the second draft plan was dated 23rd July 1981 which had been prepared by AUDA in which the Ahmedabad Municipal area was also included. What the State Government did on 12th August 1983 was to approve or finalise the draft plan of 15th January 1976. It also finalised the modifications to the said plan.
26. Here it is relevant to note the provision of Sub-Clause (i) of Section 17(1)(a) of the Gujarat Act. This sub-section contemplates the State Government sanctioning the draft development plan for the whole of the area covered by the plan "or separately for any part thereof" (emphasis added) and this is precisely what it did in 1983 and 1987. Assuming that 1981 draft plan, prepared by AUDA, included the draft plan which had been prepared in the year 1976 by A.M.C., nevertheless in 1983 the State Government thought it fit to finalise the development plan only with regard to a part of the urban development area, namely, the part which is represented by the A.M.C. By virtue of the provisions of Section 124 this must be regarded, and in fact it also purports to be a plan which has been finalised under the Gujarat Act.
27. The result which attaches to the finalisation of a development plan must, therefore, necessarily follow. According to Sub-section (3) of Section 17, as has already been noticed, the final development plan is binding on the Area Development Authority concerned and also on all authorities situated in the area of the development plan. Therefore, by virtue of provisions of Section 22, this sub-section would make the final development plan of 1983 binding on AUDA as it, in a sense, steps into the shoes of A.M.C. In any case, after 1978 the only area development authority having jurisdiction, being AUDA, by virtue of Sub-section (3) of Section 17 this final development plan became binding on it and other authorities.
28. It is not as if after 1983 the AUDA was helpless and could not revise the plan which had become final in 1983. The State Government could have varied it under Section 19 or AUDA could have exercised its jurisdiction under Section 21 and revised the development plan of 1983. The use of the clause "from the date on which a final plan comes into force" occurring in Section 21 clearly indicates that as stated in the said section, the provisions of Sees. 9 to 20 will have to be applied only after the final plan has become operative. In the scheme of the provisions of the Act it was not permissible for AUDA to operate or to raise the contentions in the manner in which it has sought to do. It was, however, open to AUDA to regard the 1983 sanctioned plan as a draft plan under Section 9 and to invite objections thereto. This could have been done after a 'fresh survey' was prepared under Section 21 and the people would then have had a fresh opportunity of raising objections or giving suggestions. It could well happen that persons like the respondents herein would have contended that if the Government or AUDA did not acquire land after 1983, even though the development plan had been finalised, then the Government should not approve continuation of this reservation because, in Sub-section (2) of Section 17, the State Government is obliged not to include any reservation in the development plan unless it is satisfied that such an authority would acquire the land within 10 years from the date on which the final development is to come into force. The provision analogous to Sub-section (2) of Section 17 occurring in Section 7 of the Bombay Act has already come to be considered by the Supreme Court in the case of K.L. Gupte v. Corporation, Greater Bombay . At page 309 in para 14, the said provision is described as "a check on the local authority making too ambitious proposals for designating lands for public purposes which they may never have means to fulfil."
29. In the absence of AUDA acting under Section 21 and the State Government under Section 19 with respect to the 1983 plan, the effect of two plans of 1983 of 1987 would be that so far Section 20 is concerned, the period of 10 years in relation to the final plan of 1983 would come to an end with effect from 17th September 1993 (because, the finalisation by the notification dated 12th August 1983 was made effective from 17th September 1983). For the rest of the area, however, the period of ten years will run with effect from 3rd December 1987, the date with effect from which the plan notified on 2nd November 1987 was to become effective. This will be the effect of Section 17(1)(a)(i) read with Section 17(e). In fact, as aptly observed by the Supreme Court on the analogous Section 10(1) of the Bombay Act in K.L. Gupte's case (supra) in para 13 on page 308 of AIR. "If the development plan is sanctioned separately in parts, then each part so sanctioned is deemed to be the final development plan for the purposes of the succeeding provisions of the Act. All such provisions are to apply in relation to such part as they apply in relation to a development plan relating to the whole of the area."
30. From the aforesaid reasons it must follow that the learned single Judges were right in coming to the conclusion that the period of 10 years in the instant case had lapsed on 17th September 1993 and that the development plan finalised by the notification dated 12th August 1983 was not superceded by the development plan on 2nd November 1987. That being so, since the concerned land is not acquired within six months from the service of the notice after expiry of ten years, the reservation shall lapse under Section 20(2) of the Gujarat Act. The analogous provision in the Bombay Act has already been held to be one "for the benefit of the owner of the land" in para 14 of the above referred case of K. L. Gupte (supra). Any other interpretation will be fraught with inequity and contrary to the due process contemplated under the Gujarat Act. In a subsequent judgment on a similar provision from Maharashtra Regional & Town Planning Act, 1976, the Supreme Court has held in Municipal Corporation of Greater Bombay v. Hakimvadi Tenants Association para 7 of that, if there is a valid notice, the running of time cannot be prevented.
31. The next question which arises for consideration would be as to what is the effect of applicability of Sub-section (2) of Section 20. According to the said section, when six months' notice has been given and acquisition has not been made, then, the designation of the land as specified in Clause (b), Clause (d), Clause (k) or (n) of Sub-section (2) of Section 12 shall be deemed to have lapsed. Under Section 12, the land which is covered by the development plan may be used for different purposes as indicated therein. Sub-clause (a) provides that a development plan may contain proposal for designating the use of the land for residential, industrial, commercial, agricultural and recreational purposes. It cannot be that once the designation for specific purposes lapses, owners of the land can utilise the same in any manner they like. The land being within the municipal limits, would certainly be subject to the building bye-laws applicable in the area. Counsels for the respondents have stated at the bar that the land in question comes within the residential zone and is covered by Section 12(2)(a) also, and therefore, the general land user will not change, namely, the land will be used for constructing buildings for residential purposes although the particular reservation for the public purpose of municipal housing under Section 12(2)(b) or (k) may lapse. That being so, municipal bye-laws relating to the construction of residential buildings would be applicable and the plans which are submitted by the respondents will have to be examined accordingly.
32. The last question which arises for consideration is with regard to the applicability of the Urban Land Ceiling Act. On this, again, there is no dispute. It is accepted, and in our opinion rightly so, that as the land falls within an urban agglomeration, the provisions of the Urban Land Ceiling Act would be applicable. Section 42 of the ULC Act provides that the provisions of the said Act will have an overriding effect over other laws. Therefore, as rightly held by M.R. Calla, J. the land owners and the competent authority have to act under the provisions of the said Act as well. Mr. Sanjanwalla states that as far as his client is concerned, in Letters Patent Appeal No. 156 of 1995, the order has already been passed by the competent authority to the effect that there is no surplus land under the ULC Act. It is not necessary for us to examine this aspect because, it is accepted that the provisions of the ULC Act will apply to all the lands in question. If the lands fall within the ceiling limit, they will be used by the owners, otherwise, they will be dealt with in accordance with law.
33.It is clarified that with regard to the area other than that covered by 1983 notification, the development plan of 2nd November 1987 "will be applicable and would continue for a period of 10 years with effect from 3rd December 1987."
34. For the aforesaid reasons, these appeals are disposed of accordingly but with no order as to costs.
Mr. Advocate General makes an oral request for a stay of the operation of ffiis judgment for two months. In our opinion, instead of staying the operation of the judgment, the ends of justice will be met if the respondents are directed that they shall not start construction or transfer the lands or part with physical possession thereof or create any third party rights for a period of two months from today. Counsels for the respondents agree to this arrangement and in view thereof the Corporation is at liberty to examine their plans in accordance with law.