Gujarat High Court
Madanben Harivadan Patel vs State Of Gujarat on 28 April, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/7584/2023 ORDER DATED: 28/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7584 of 2023
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MADANBEN HARIVADAN PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DR. S. MURALIDHAR, SENIOR ADVOCATE with
MR MASOOM K SHAH(6516) for the Petitioner(s) No. 1,2,3,4
MR JAY SHAH, ADVOCATE with
MR DHRUVIN DOSSANI, ADVOCATE with
MS BHAVNA SHAH, ADVOCATE with
MS PRIYANSHI TRIVEDI, ADVOCATE with
MR VISHWAS K SHAH(5364) for the PPetitioner(s) No. 1,2,3,4
MS BHAVNA V SHAH(11047) for the Petitioner(s) No. 1,2,3,4
MR KAMAL TRIVEDI, ADVOCATE GENERAL with
MR VINAY VISHEN, AGP for the Respondent - State
MR. VISHRUT R JANI(6696) for the Respondent(s) No. 3
RULE SERVED BY DS for the Respondent(s) No. 2,4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 28/04/2026
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. This is a writ petition filed by four persons claiming to be agriculturalist and owners of agricultural land and the petitioners claim that the land in question is their ancestral property. The reliefs prayed in the writ petition are as under:-
"a) Be pleased to declare the notification no.
GHB-19-UDA-1177/646 (1)-Q2 dated 30th January Page 1 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined 1978, issued by the State of Gujarat under section 1 sub section 3 of the Gujarat Town Planning and Urban Development Act, 1976, which brings into force the said enactment as ultra vires the Constitution of India, 1950 and/or the Gujarat Town Planning Act, 1976; (Annexure-A)
b) Be pleased to declare The Gujarat Town Planning and Urban Development Act, 1976 as ultra vires the Constitution of India, 1950; (Annexure-B)
c) Be pleased to declare Gujarat State Legislature (Delegation Of Powers) Act, 1976 (Act no. 44 of 1976) as ultra vires the Constitution of India; (Annexure-B)
d) Be pleased to declare Section 51 Of The Constitution (Forty Second Amendment) Act, 1976 as ultra vires the Constitution and/or violative of the Doctrine of Basic Structure Doctrine; (Annexure-C)
e) Be pleased to declare Section 12(2)(m) and Section 116A of The Gujarat Town Planning and Urban Development Act, 1976 as ultra vires the Constitution of India, 1950;
f) Be pleased to quash and set aside impugned notification dated 12.10.17 to the extent Respondent No. 3 is placed in the category specified as D2 instead of earlier classification/categorization as Category D4; (Annexure-E)
g) Be pleased to quash and set aside Clause 6.17.4 of the Comprehensive General Development Control Regulations-2017 to the extent it provides for contribution of land to the extent of 40% by the owner if the land falls in D1 and D2 category; (Annexure-D)
h) Be pleased to quash and set aside order dated 12.12.2022 bearing no. BAUDA/Z-4/Plot Validation-F.K.No.95-22/C.V./Vashi passed by Respondent no.3 to the extent that it provides for Petitioners to hand over 40% of Land bearing Page 2 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined Survey no. 435 (Old no. 666), Situated at Mauje:
Ankleshwar, District: Bharuch, admeasuring 11188 Sq. Mtrs. to Respondent no.3; (Annexure- E)
i) Pending admission, hearing and final disposal of this Petition, be pleased to stay the effect, operation, implementation of order dated 12.12.2022 bearing no. BAUDA/Z-4/Plot Validation-F.K.No.95-22/C.V/Vashi passed by Respondent no.3 to the extent that it provides for Petitioners to hand over 40% of Land bearing Survey no. 435 (Old no. 666), Situated at Mauje:
Ankleshwar, District: Bharuch, admeasuring 11188 Sq. Mtrs. to Respondent no.3; (Annexure- E)
j) Pending admission, hearing and final disposal of this Petition, be pleased to stay the effect, operation, implementation of impugned notification dated 12.10.2017 to the extent that Respondent no.3- BAUDA is placed in D2 category by shifting it from D4 category;
(Annexure-E)
k) Pending admission, hearing and final disposal of this Petition, be pleased to stay the effect, operation, implementation of impugned Clause 6.17.4 of the Comprehensive General Development Control Regulations-2017 to the extent it provides for contribution of land to the extent of 40% by the owner if the land falls in D1 and D2 category; (Annexure-D) I) Pending admission, hearing and final disposal of this Petition, be pleased to direct the Respondents to maintain status quo in the Land bearing Survey no. 435 (Old no. 666), Situated at Mauje: Ankleshwar, District: Bharuch, admeasuring 11188 Sq. Mtrs. in question and no further steps may be taken with respect to the land in question;"
2. At the outset, we may note that besides challenging the validity of the Gujarat Town Planning and Urban Development Page 3 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined Act, 1976 (for short 'the Act, 1976') and the notification dated 30.01.1978 passed under Section 1(3) of the Act, 1976, the petitioners have also challenged the notification dated 12.10.2017 of the State Government whereby the Bharuch Ankuleshwar Urban Development Authority (BAUDA) has been placed in the category specified as 'D2' instead of earlier classification/categorization as category 'D4'. Mr. Vishwas Shah, learned advocate appearing for the petition, at the outset, would submit that he does not propose to press prayers '9(c)' and '9(e)' (for being overlapping) in the writ petition.
3. However, the challenge to the validity of the entire enactment of Act, 1976 being ultra-vires to the Constitution of India has been pressed into service only for the reason that with the placement of respondent No. 3 in 'D2' category, there would be a requirement of more contribution to the extent of 40% by the owners for development of the area concerned.
4. The challenge is also to the order dated 12.12.2022 passed by respondent No. 3 whereby the petitioners have been asked to hand over 40% of land bearing Survey No. 435 (Old No. 66) situated at Mauje: Ankleshwar, District Bharuch admeasuring 11188 sq. mtrs. It seems that this order passed by the respondent No. 3 was the trigger to file the present petition.
5. Insofar as the challenge to the deduction of 40% by virtue of the order dated 12.12.2022, the controversy at hand Page 4 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined has been set at rest with the decision of the Division Bench of this Court in the case of Vadodara Shaheri Jilla Khedut Mandal Through President v.s. Vadodara Municipal Corporation Thro Municipal Commissioner [Writ Petition No. 111 of 2013 decided on 15.07.2014], wherein it is held as under:-
"187. Relying on the aforesaid observations made by the Supreme Court in the facts of that case, it has been strenuously contended before us that when actually acquiring the land, the authorities are not within their powers to frame a regulation by which the owner of the land has to compulsorily set apart 35% to 40% of his land if he seeks development permission from the authorities, at the stage of development plan.
188. We are afraid, this decision is of no assistance to the petitioners and some of the observations made by the Supreme Court have been torn out of context. The Supreme Court was concerned with a plot of land reserved for a garden in a development plan for the purpose of promoting ecology and congenial environment. However, at a later stage, the Government of Maharashtra received a report from the Municipal Corporation of Pune that they were not in a position to acquire the said plot for the purpose of garden. In such circumstances, the State Government de-reserved the same by issuing a notification. The action on the part of the Government in de-reserving the plot which was reserved for the purpose of garden was challenged by way of a public interest litigation contending that once the land is earmarked for a particular purpose for promoting environmental exigencies, the same could not have been de- reserved. It was in that context that the Court observed that in order to provide amenities to the residents, private land can be acquired to effectuate the public purpose. But, when acquiring the same, the Government cannot deprive the owner of the land from using the Page 5 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined same for residential purpose. In the case at hand, neither we are concerned with acquisition nor reservation and we have explained this very exhaustively. The impugned regulation imposes a restriction upon the owner of the land to set apart 35% to 40% of his land if at all he seeks development permission for the same, and such regulations, as we have explained, is with the avowed object of having planned development to meet with the future exigencies.
189. Reliance has also been placed on the decision of the Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mill Private Limited and others, (2003)2 SCC 111. This decision has been relied upon mainly to make good two submissions (i) that an owner of a property, subject to reasonable restrictions which may be imposed by the Legislature, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner, or in other words, a restriction imposed on the user thereof except in a mode or a manner laid down under a statute, should not be presumed; and (ii) when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities, while acting under a statute, are only a creator of a statute, they must act within the four corners thereof. In so far as the proposition of law sought to be canvassed by the petitioners is concerned, there cannot be any dispute. In Bhavnagar University (supra), the Court held that the land which had been de- reserved under Section 20 could not be a subject matter of a revised development plan under Section 20(1) of the Act. The issue involved in that case was in respect of applicability of Section 40 while framing the scheme.
190. As discussed by us, the restriction which is sought to be imposed by way of the impugned regulation cannot in any manner be termed as unreasonable restriction or contrary to the provisions of law. The regulation has been framed in accordance with law with a definite object in mind i.e. planned development.Page 6 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026
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191. The learned counsel appearing for the petitioners have also very strenuously contended before us that there is no guidelines prescribing the impugned regulations either in Section 12(m) or in Section 119 or in any other section or even in the preamble of the Town Planning Act. We are not impressed even by this submission as catena of decisions of the Supreme Court has taken the view that inspite of very wide power being conferred on a delegatee that such a section would still not be ultra vires, if guideline could be gathered from the Preamble, Object and Reasons and other provisions of the Acts and the Rules. In testing validity of such provision, the courts have to discover, whether there is any legislative policy purpose of the statute or indication of any clear will through its various provisions, if there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalised. The exercise of power of such delegatee is controlled through such policy. In the fast changing scenario of economic, social order with scientific development spawns innumerable situations which Legislature possibly could not foresee, so delegatee is entrusted with power to meet such exigencies within the in built check or guidance and in the present case to be within the declared policy. So delegatee has to exercise its powers within this controlled path to subserve the policy and to achieve the objectives of the Act. A situation may arise, in some cases where strict adherence to any provision of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially effecting the policy of the Act, viz., development in the present case then such exercise of power would be covered under it. All situation cannot be culled out which has to be judiciously judged and exercised, to meet any such great hardship of any individual or institution or conversely in the interest of society at large. (vide Consumer Action Group and another v. State of T.N., AIR 2000 SC 3060) Page 7 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined
196. It has been very strenuously contended before us on behalf of the petitioners that the very object with which the impugned regulation has been proposed in the GDCR is not likely to be subserved and the whole idea in the mind of the authorities is absurd. According to the learned counsel appearing on behalf of the petitioners, the applicability of the impugned regulation even so far as the small plot holders are concerned, will not serve the purpose which is in the mind of the authorities. The learned counsel have given us an example to explain this submission. According to the learned counsel, in a society if the small plot holders are asked to set apart 40% of the total area of the land at the time of seeking development permission, then in what manner the area of that 40% of the individual plot would help the authorities in framing an effective town planning which may be introduced in future.
197. We are afraid, we are not able to accept such submission canvassed on behalf of the petitioners for the simple reason that we are not experts in the field of town planning. To certify the impugned regulation as an absurd regulation will be too much. It is not that overnight such regulation has been proposed in the GDCR. Many experts in the field must have applied their minds and thereafter must have reached to this conclusion that such a regulation is now very much imperative in the present day scenario of expanding population and industrial development taking place in and around the cities which, in its turn, is attracting people from outside. Most of our towns and cities have grown up without any planning with the result that public amenities therein are now being found to be wholly inadequate for the already enlarged and still expanding population. The roads are too narrow for modern vehicular traffic. The drainage system, such as it obtains in most of the towns and cities, is hopelessly inadequate to cope with the requirements of an already overgrown population. The best example we can give is the problems in Bopal so far as the city of Ahmedabad is concerned. Therefore, it is not for the Court to comment anything on the wisdom of the policy Page 8 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined embodied in the impugned regulation.
198. We are quite conscious of the fact that no land owner, more particularly, a small plot holder would appreciate the idea of leaving aside 35% to 40% of the land for such town planning purposes as any owner would be anxious to see that every inch of his land is being utilized at its best. However, people are not mindful of the fact that the restrictions imposed today will yield better results tomorrow and it is only the people who will ultimately be benefited. The point which we are discussing is well answered by the Supreme Court in the case of Esha Ekta Apartments Co-operative Housing Society Ltd. and others v. Municipal Corporation of Mumbai and others, AIR 2013 SC 1861, in the following words :
"In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an Page 9 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.
The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimised from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.
Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building."
199. Once again at the cost of repetition, we reiterate that under the Town Planning Act there Page 10 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined are provisions as regards the preparation of a development plan and town planning scheme. The development plan is a macro plan as envisaged under Section 12 of the Act, whereas the town planning scheme is a micro plan which is provided in Sections 40 to 71 of the Act. There is a vast difference between a macro plan and a micro plan. The development plan is prepared keeping in mind a vision for 20 years. None can dispute the fact that the authorities, while sanctioning and preparing a town planning scheme, are unable to match with the pace at which the development is taking place as on today. Such is the reason why development takes place even in an area where there is no town planning scheme. Keeping this in view the special provisions are made for the non-town planning scheme areas. If people are permitted, more particularly, those engaged in the business of construction and development, without keeping in mind the future necessities, more particularly, when a town planning scheme is prepared, virtually there would not be any possibility for reconstitution of a plot or even for providing an allocation as envisaged under sub-section (3) of Section 40 of the Act. However, with a view to see that the development is not stalled and can be permitted even in a non-town planning area, a provision is made to keep 40% of the total land area intact, wherein no development is permissible. Such a provision is not a reservation on allocation in the development plan, but it is one of the restrictions as provided under Section 26 of the Act. This would facilitate the town planning authorities to undertake effective micro planning when the intention to prepare a town planning scheme is declared under Section 41 of the Act. Such restriction, in fact, is a part and parcel of the town planning and the same is not just a figment of imagination of the authorities concerned. One should not forget that when a development is made in a non-town planning area, such lands are not final plots as defined under the Act, but they are survey numbers which indicate that it is a non-town planning scheme area."
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6. It may also be pertinent to note here that the order dated 12.12.2022 for deduction of 40% of petitioners land requiring them to hand over the said land for development of the area is as part of the preparation of development plan under the provisions of the Town Planning Scheme, for the non-town planning scheme areas with a vision for future development. The scheme of the Act is ultimately for the benefits of the land holders/owners as discussed and deliberated by the Division Bench in Vadodara Shaheri Jilla Khedut Mandal [supra].
7. We, therefore, do not find any good ground to sustain the challenge to the order dated 12.12.2022 passed by respondent No. 3. No good ground has been made to challenge the notification dated 12.10.2017 for bringing the respondent No. 3 to 'D2' category in place of category 'D4'. Moreover, the said decision being a policy decision within the domain of the State, this Court does not find any reason to initiate any inquiry into the validity of the said notification, which is otherwise intended for the overall development of the area falling within the jurisdiction of the Development Authority concerned (BAUDA).
8. Further, the attention of the Court is invited to Page No. '162' of the paperbook by Mr. Vishrut Jani learned advocate appearing for respondent No. 3 - BAUDA to demonstrate that on a notary affidavit 22.06.2022, all the petitioners herein have consented to 40% deduction which later brought into effect under the order dated 12.12.2022. The challenge to the Page 12 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026 NEUTRAL CITATION C/SCA/7584/2023 ORDER DATED: 28/04/2026 undefined order of deduction thus, is nothing but an afterthought.
9. For the aforesaid, the challenge to the validity of the Act of 1976 cannot be sustained. All other arguments extensively made on the validity of the statutory provisions by Dr. S. Muralidharan, learned senior advocate appearing for the petitioners need not to be deliberated by us for the above reasons.
10. The present petition is accordingly, dismissed as misconceived.
11. After dictation of this order, the request made by Mr. Masoom Shah, learned advocate for the petitioners to stay the operation of this order is hereby rejected.
(SUNITA AGARWAL, CJ ) (D.N.RAY,J) SHRIJIT PILLAI Page 13 of 13 Uploaded by SHRIJIT PILLAI(HC01400) on Wed May 06 2026 Downloaded on : Sat May 09 00:58:16 IST 2026