Gujarat High Court
Ashokbhai vs State on 25 August, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/1400/2006 22/ 22 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1400 of 2006
In
SPECIAL
CIVIL APPLICATION No. 17009 of 2004
With
LETTERS
PATENT APPEAL No. 1401 of 2006
In
SPECIAL
CIVIL APPLICATION No. 17010 of 2004
To
LETTERS
PATENT APPEAL No. 1403 of 2006
In
SPECIAL
CIVIL APPLICATION No. 17012 of 2004
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
ASHOKBHAI
HARIBHAI GAJERA THRO'POWER OF ATTORNE HOLDER - Appellant(s)
Versus
STATE
OF GUJARAT & 7 - Respondent(s)
=========================================
Appearance :
MR
SN SHELAT WITH MR SHITAL R PATEL
for Appellant(s) : 1,
MR
PRANAV DAVE, LD. ASST. GOVERNMENT PLEADER for Respondent(s) : 1,
MR
HS MUNSHAW for Respondent(s) : 2,
MR BS PATEL for Respondent(s) :
3,
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 25/08/2011
COMMON
CAV JUDGMENT
(Per : HONOURABLE MR. JUSTICE MR. J.B.PARDIWALA) As common questions of facts and law arises in the above captioned appeals, they were taken up for hearing together and are being disposed of by this common judgment and order.
In all the above captioned appeals, the appellants challenge the common judgment and order dated 03rd May, 2006 passed by the learned Single Judge in Special Civil Application No.17009 of 2004 to Special Civil Application No.17012 of 2004 whereby the learned Single Judge rejected all the writ petitions.
Facts relevant for the purpose of deciding this batch of appeals can be summarised as under:
3.1 The dispute relates to land bearing Block No.9 of Revenue Survey No.8 admeasuring 55,948 Sq. Meters situated at Village Magob, Taluka Choryasi, District Surat. The land in question falls within the limits of Surat Urban Development Authority (hereinafter referred to as 'SUDA') and is covered under the development plan of SUDA. On completion of 10 years in the year 1996, a draft revised plan was submitted under Section 97 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as 'the Act, 1976').
It appears that notice regarding publication of the draft revised development plan was published on 29th February, 1996 in the Part II of the Extra Ordinary Gazette of Government of Gujarat inviting objections / suggestions on the proposed draft revised development plan. It also appears that at the stage of Section 13 of the Act, 1976 land was reserved for Agricultural Produce Market Committee (hereinafter referred as 'APMC'). Objections were lodged by the land owners of the land against the land being placed in reservation for APMC commercial. In the year 1997, modification to the said draft development plan was published under Section 15 where the land was designated in residential zone and reservation shown earlier for APMC was omitted. Thereafter, on 26th August, 1997 modified development plan under Section 16 of the Act, 1976 was submitted by SUDA to the State Government putting the land in question in a residential zone. It appears that on 02nd June, 1998 development permission in respect of entire Block No.9 was granted and pursuant to the permission, tenements / residential units came to be constructed to a certain extent.
3.2 On 17th May, 2001 the Government in exercise of powers conferred by the proviso to sub-clause (ii) of clause (a) of sub-section (1) of Section 17 of the Act, 1976 proposed to modify the aforesaid draft revised plan and invited objections and suggestions in this regard with the proposed modifications within a period of two months. As per the above Notification, the text at Serial No.242 was as under:
"The land bearing block no.4, 9 of village Puna are designated for Residential Use shall be deleted from the said Use and the land so released shall be designated Commercial use Agricultural Produce Marketing Committee (APMC) under Section 12(2)(o) of the Act as shown on accompanying Plan no.14."
3.3 It appears that the modification was published by the State Government after receiving request from APMC in this regard. On 15th July, 2002 the appellants lodged objections before SUDA, which were forwarded to the State Government and submitted directly to the Town Planning Officer. On 29th July, 2002 SUDA also submitted to the State Government supporting that proposal under Section 17 should be deleted and it should be kept for residential purpose.
3.4 Inspite of the fact that the development permission dated 02nd June, 1998 was granted with respect to Block No.9, which was acted and implemented to a certain extent; inspite of the fact that Resolution No.5 dated 05th October, 2001 of APMC suggesting that APMC does not require land bearing Block No.9 of Village Magob; inspite of the fact that the appellants' objections dated 15th July, 2002 were lodged with SUDA and forwarded to the State Government and lastly, inspite of the fact that on 29th July, 2002 SUDA also submitted to the State Government that APMC does not need the land in question, the State Government proceeded further to issue a final Notification sanctioning the development plan on 02nd September, 2004. Thereby the lands came to be designated for commercial use for APMC under Section 12(2)(o) of the Act.
3.5 It is at that stage that, writ petitions were preferred challenging the final Notification dated 02nd September, 2004 showing the land reserved for APMC.
3.6 The learned Single Judge came to the conclusion that the appellants-original petitioners are not entitled to any relief as clearly it is for the Authority for whom the lands are reserved to satisfy itself about its need. The learned Single Judge took the view that once the procedure envisaged under the Act, more particularly, from Section 13 to 17 of the Act is complied with, it is not for the Court to look into as to whether the Authorities are justified in reserving the land in question for the purpose referred to in Section 12 of the Act, 1976 and the Court cannot sit in appeal over the decision of the Government. The learned Single Judge also recorded a finding that once the decision making process is found to be in accordance with law, the decision of the Government in town planning matter, especially reservation of land for the purpose referred to in Section 12 of the Act, 1976, ordinarily should not be disturbed by the Court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. Accordingly, the learned Single Judge rejected all the petitions.
We have heard learned senior counsel Mr.S.N. Shelat appearing for the appellants, learned advocate Mr.B.S. Patel appearing for APMC, Surat and learned Assistant Government Pleader Mr.Pranav Dave appearing for respondent No.1-State.
Learned senior counsel for the appellants would contend that Section 17 of the Act, 1976 provides for power of the State Government to sanction a draft development plan. Learned senior counsel would further contend that it is incumbent upon the State Government to apply its mind before according such sanction as provided under Clause (3) of the provision of Section 17 of the Act, 1976. He would further submit that the sanction is accorded in a mechanical manner without examining the relevant aspects and the documents on record and therefore, such sanction accorded by the State Government to the draft development plan and SUDA so far as the land in question is concerned, is illegal, arbitrary and without proper application of mind.
Learned senior counsel would further submit that it is an admitted position that vide communication dated 18th June, 2002 APMC, Surat very categorically and specifically informed SUDA that the land in question is not needed for the purpose of APMC and reservation may be lifted. He would further submit that thus the need does not exist and therefore, exercise of powers by the State Government in reserving the land in question under Section 12 Clause (2) sub-clause (o) is perverse and malafide. He would further submit that it is also evident from the record that SUDA as Area Development Authority has not approved for such reservation. He also submitted that it is clear from the record that the State Government has not directed SUDA to reserve the land for the purpose of APMC and therefore, the very exercise of powers of reserving the lands in question under Section 12 Clause (2) Sub-clause (o) is de-hors the provision of the Act inasmuch as the necessary pre-requisite, which are necessary for reserving the land under Section 12 Clause (2) Sub-clause (o) does not exist.
The learned senior counsel would further submit that the learned Single Judge has failed to appreciate the important question of law that the respondents while exercising the powers for framing of development plan are obliged to keep in view the objectives. When APMC and SUDA both are of the view that no further land is required for APMC, then there was no occasion to reserve the land for APMC.
Lastly, the learned senior counsel Mr.Shelat submitted that the power conferred upon the respondents are not absolute powers and they need to be exercised in accordance with law and reasonably.
Per contra, learned Assistant Government Pleader submitted that the learned Single Judge has not committed any error muchless an error of law warranting any interference in these appeals. He has relied upon the affidavit filed by one Shri K.M. Panchal, Chief Town Planner, Gujarat State, Gandhinagar. In the said affidavit-in-reply it has been averred in paragraph Nos.10 to 15 as under:
"10. I respectfully say that the APMC by resolution no.5 dated 02.10.2001 decided that it has no need of said land under reference i.e. Block no.9 of village Magob for the prescribed purpose ad filed a written application dated 18.06.2002 after the statutory time limit to two months before SUDA requesting for variation of commercial purpose under which the above said land was designated. SUDA by its letter dated 29.07.2002 after the expiry of statutory time limit of two months from the date of notification dated 17.05.2001, wrote to Government for the above said discrepancy and stated that APMC does not need the above said land for the said purpose and requested Government to remove the discrepancy between plan the notification. I say that Government of Gujarat by its notification dated 02.09.2004 has finalized the modifications and sanctioned the said revised final development plan of SUDA u/s. 17(1)(c) of the Act and fixed the 15th September, 2004 as the date on which the revised final development plan came into force under the power conferred by the clause (c) of the sub Section (1) of Section 17 of the said Act. Copy of the said notification is annexed and marked as Annexure-III.
11. I respectfully say that the State Government considered the letter of the SUDA dated 29.07.2002 and decided to rectify the mistake and accordingly removed the discrepancy while finalizing the modifications under section 17(1)(c). Moreover, since the State Government did not receive any objections / suggestions on the proposed modification no.242 decided to finalise the said modification. The above said notification at serial no.170 it reads as under.
"The land bearing block no.4, 9 of village Puna are designated for Residential Use shall be deleted from the said Use and the land so released shall be designated Commercial use Agricultural Produce Marketing Committee (APMC) under Section 12(2)(o) of the Act as shown on accompanying Plan no.14."
12. I respectfully say that as per the provisions of the Gujarat Town Planning and Urban Development Act, 1976 & The Gujarat Town Planning and Urban Development Rules, 1979, the concerned authority has powers to designate any land as reservation considering the demands received from different departments. The competent authority after getting the demands framed the proposals accordingly under Section 12 with subsequent clauses of the said Act.
13. I respectfully say that under the provisions of section 19 of the Act, on the proposal of the appropriate authority the State Government may make variation in the proposal of the development plan after inviting suggestions and objections from the general public as per the procedure prescribed in the Act and Rules.
14. I say and submit that the appropriate authority i.e. SUDA and the State Government has scrupulously followed all the procedures prescribed in the Act and Rules while preparing, publishing and submitting the revised development plan. All the procedures for inviting suggestions and objections on the proposal of the draft development plan at various stages have been followed and opportunity was given to the general public.
15. I say and submit that the Ld. Single Judge in his Oral Judgment dtd. 03.05.2006 in the above said writ petition has held valid all the procedures followed by the SUDA and State Government while finalising the draft revised development plan. The Ld. Single Judge has rightly considered the decision of the court in the matter of ISHWARBHAI GANPATBHAI PATEL V. STATE OF GUJARAT & ORS reported in 2006 (1) GLR 758 and after considering the various provisions of the Act while dismissing the writ petition filed by the appellant. I say and submit that there is no need to interfere with the oral judgment of the Ld. Single Judge."
Learned counsel Mr.B.S. Patel appearing for APMC, Surat also submitted that the learned Single Judge has not committed any error and the appellants are not entitled to any relief.
It is important to note that in the affidavit-in-reply filed by the State Government it has taken a stand that APMC vide Resolution No.5 dated 05th October, 2001 decided that they do not need land, i.e. Block No.9 of Village Magob, for the prescribed purpose, but informed about the same on 18th June, 2002, i.e. after the expiry of statutory time limit of two months, to SUDA requesting for variation of commercial purpose under which the land was designated. It also appears from the stand taken by the Government that SUDA by its letter dated 29th July, 2002 wrote to the Government to remove the discrepancy informing that APMC does not need land for the requisite purpose after expiry of statutory time limit of two months from the date of Notification dated 17th May, 2001. Therefore, it appears that only on this objection, the Government is trying to justify sanctioning of the revised final development plan of SUDA under Section 17 Clause (1) sub-clause (c) of the Act, 1976. However, the fact remains that SUDA made it very clear that APMC does not require the land in question.
Before we address ourselves to the contentions canvassed by the respective parties, it would appropriate to notice Sections 17 and 21 of the Act, 1976, which are as under:
"17. Power to State Government to sanction draft development plan. -
(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 consider proper; or
(ii) return the draft development plan and the regulations to the area development authority or, as the case may be, to the authorised officer, for modifying the plan and the regulations in such manner as it may direct:
Provided that, where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary, the State Government may, instead of returning them to the area development authority or, as the case may be, the authorised officer under this sub-clause, publish the modifications as 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 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 a Clause (a), Clause (b) or Clause (c) shall be notified by the State Government in the Official Gazette and the draft development plan together with the regulations so sanctioned shall be called the final development plan.
(e) The final development plan shall come into force on such date as the State Government may specify in the notification issued under Clause
(d):
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) or Clause (o) of sub-section (2) of Section 12 and such land does not vest in the area development authority, the State Government shall not include the said reservation in the development plan, unless it is satisfied that such authority would acquire the land, whether by agreement or compulsory 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 concerned may execute any work for developing, re-developing or improving any area within the area covered by the plan in accordance with the proposals contained in the development plan.
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."
There is no doubt that the State Government is entitled to publish the modification, provided it is of opinion that substantial modifications in the draft development plan are necessary. As explained by the Apex Court in the case of Bhikhubhai Vithalbhai Patel and others Vs State of Gujarat and another reported in (2008) 4 Supreme Court Cases 144, expression "is of opinion" that substantial modifications in the draft development plan are necessary is of crucial importance. We are of the view that there was no material available on record which enabled the State Government to form its opinion that substantial modifications in the draft development plan were necessary. The State Government very well knew that APMC does not require the land in question. SUDA also informed about the same. However, on a technical objection about expiry of statutory time period, the Government cannot justify the modifications inspite of the fact that there is no need to reserve the land for APMC. Assuming for the moment that the objections were lodged after the time period expired, but if the land itself is not required for the purpose for which it was reserved, then it is always open for the owner to say that no modifications were necessary in the draft development plan.
We are of the view that the issue which we are considering is squarely covered by the judgment of the Supreme Court in case of Bhikhubhai V. Patel (Supra). In the case of Bhikhubhai V. Patel (Supra), the State Government in exercise of its power conferred under the provisions of the Act constituted SUDA, which prepared a draft development plan, whereby the land belonging to the appellants were proposed for designating the use of land for residential purpose. The State Government have not considered the draft development plan submitted by SUDA and sanctioned the plan in the modified form on 31st January, 1986 whereby the appellants' land in question were reserved for education complex of South Gujarat University. The final development plan was accordingly brought into force with effect from 03rd March, 1986. Neither the Area Development Authority nor the Authority, for whose purpose the land was designated in the final development plan, initiated any steps to acquire the land of the appellants. The appellants waited for a period of 10 years from the date of coming into force the final development plan, served a notice on the Authority concerned requiring it to acquire the land within six months from the date of service of such notice. However, no steps were taken by any of the Authorities proposing to acquire the land. Instead, SUDA in purported exercise of its power under Section 21 of the Act, 1976 sought to revise the development plan of reserving land in question once again for education complex of South Gujarat University. In this background, the Apex Court considering the relevant provisions of the Act, held as under:
"19. A plain reading of Section 17 suggests that on receipt of draft development plan the State Government may sanction the draft development plan, for the whole of the area covered by the plan or separately for any part thereof; return the draft development plan for modifying the plan in such a manner as may direct; but in cases where the State Government is of opinion that the substantial modifications in the draft development plan are necessary, it may, instead of returning them to the authority or the authorised officer, publish the modifications so considered necessary along with the notice in the prescribed manner inviting suggestions or objections with respect to the proposed modifications. It may even refuse to accord sanction to the draft development plan and direct to prepare a fresh development plan under the provisions of the Act. Indeed a very wide power is conferred upon the State Government in the matter of sanctioning of the draft development plan. In the instant case we are concerned with the action of the State Government in making substantial modifications in the revised draft development plan. Section 21 of the Act mandates that the same procedure as provided for preparation and sanction of draft development plan including the one under section 17 would be applicable even in respect of revision of development plan.
20. The State Government is entitled to publish the modifications provided it is of opinion that substantial modifications in the draft development plan are necessary. The expression "is of opinion" that substantial modifications in the draft development plan are necessary is of crucial importance. Is there any material available on record which enabled the State Government to form its opinion that substantial modifications in the draft development plan were necessary? The State Government's jurisdiction to make substantial modifications in the draft development plan is inter-twined with the formation of its opinion that such substantial modifications are necessary in the draft development plan. The State Government without forming any such opinion cannot publish the modifications considered necessary along with notice inviting suggestions or objections. We have already noticed that as on the day when the Minister concerned took the decision proposing to designate the land for educational use the material available on record were :
(a) the opinion of the Chief Town Planner;
(b) Note dated 23rd April, 2004 prepared on the basis of the record providing the entire background of the previous litigation together with the suggestion that the land should no more be reserved for the purpose of South Gujarat University and after releasing the lands from reservation, the same should be placed under the residential zone.
21. It is true the State Government is not bound by such opinion and entitled to take its own decision in the matter provided there is material available on record to form opinion that substantial modifications in the draft development plan were necessary. Formation of opinion is a condition precedent for setting the law in motion proposing substantial modifications in the draft development plan.
22. Any opinion of the Government to be formed is not subject to objective test. The language leaves no room for the relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming its opinion. But there must be material based on which alone the State Government could form its opinion that it has become necessary to make substantial modification in the draft development plan.
23. The power conferred by Section 17(1)(a) (ii) read with proviso is a conditional power. It is not an absolute power to be exercised in the discretion of the State Government. The condition is formation of opinion - subjective, no doubt - that it had become necessary to make substantial modifications in the draft development plan. This opinion may be formed on the basis of material sent along with the draft development plan or on the basis of relevant information that may be available with the State Government. The existence of relevant material is a pre-condition to the formation of opinion. The use of word "may" indicates not only a discretion but an obligation to consider that a necessity has arisen to make substantial modifications in the draft development plan. It also involves an obligation to consider which are of the several steps specified in sub-clauses (i), (ii) and (iii) should be taken.
24. Proviso opens with the words "where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary, ...". These words are indicative of the satisfaction being subjective one but there must exist circumstances stated in the proviso which are conditions precedent for the formation of the opinion. Opinion to be formed by the State Government cannot be on imaginary grounds, wishful thinking, however, laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material disclosing that a necessity had arisen to make substantial modifications in the draft development plan.
25. The formation of the opinion by the State Government is with reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. The expression: "so considered necessary" is again of crucial importance. The term "consider" means to think over; it connotes that there should be active application of the mind. In other words the term "consider" postulates consideration of all the relevant aspects of the matter. A plain reading of the relevant provision suggests that the State Government may publish the modifications only after consideration that such modifications have become necessary. The word "necessary" means indispensable, requisite; indispensably requisite, useful, incidental or conducive; essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The word "necessary" must be construed in the connection in which it is used. (See-Advanced Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar)
26. The formation of the opinion by the State Government should reflect intense application of mind with reference to the material available on record that it had become necessary to propose substantial modifications to the draft development plan.
28. In the case in hand, was there any material before the State Government for its consideration that it had become necessary to make substantial modifications to the draft development plan? The emphatic answer is, none. The record does not reveal that there has been any consideration by the State Government that necessity had arisen to make substantial modifications to the draft development plan. We are of the view that there has been no formation of the opinion by the State Government which is a condition precedent for exercising the power under the proviso to Section 17 (1) (a) (ii) of the Act.
32. We are of the view that the construction placed on the expression "reason to believe" will equally be applicable to the expression "is of opinion" employed in the proviso to Section 17 (1) (a) (ii) of the Act. The expression "is of opinion", that substantial modifications in the draft development plan and regulations, "are necessary", in our considered opinion, does not confer any unlimited discretion on the Government. The discretion, if any, conferred upon the State Government to make substantial modifications in the draft development plan is not unfettered. There is nothing like absolute or unfettered discretion and at any rate in the case of statutory powers. The basic principles in this regard are clearly expressed and explained by Prof. Sir William Wade in Administrative law (Ninth Edn.) in the chapter entitled "abuse of discretion" and under the general heading "the principle of reasonableness" which read as under:
"The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act.
The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependents, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.
There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed."
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.
34. In the affidavit in reply filed on behalf of the State Government in the High Court, it was averred what weighed with the State Government to exercise its power under Section 17 (1) (a) (ii) of the Act was public interest at large. The State government thought it fit to classify the lands in question for educational use so that there is a specific pocket of educational institutional area in the fast developing city of Surat where its population in the last decade, has almost doubled. If such educational institutional pockets in the adjoining land, where there already exists the complex of South Gujarat University, are not ensured in the development plan of the city like Surat, then, in that case, land would not be available in future. This would resultantly make people to travel long distance from the city area for educational purpose. Public interest parameter is undoubtedly a valid consideration that could have been taken into account by the State Government. But this aspect of the matter is stated for the first time in the affidavit in reply and is not born out by the record. There is nothing on record suggesting as to what public interest parameter weighed with the State Government. The question is: was there any material available on record in support of what has been pleaded in the reply affidavit ?
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 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 ).
36. Neither the preliminary notification itself nor the records disclose the formation of any opinion by the State Government much less any consideration that any necessity as such had arisen to make substantial modifications in the draft development plan.
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."
In the above conspectus of the entire matter and also following the ratio as laid down by the Supreme Court in the case of Bhikhubhai V. Patel (Supra), we are of the view that there was no need for the State Government to reserve the land for APMC by issuing final Notification dated 02nd September, 2004 overruling objections and suggestions and particularly when SUDA suggested that the land be kept in residential zone.
In the result, the appeals succeed. The judgment and order dated 03rd May, 2006 passed by the learned Single Judge in Special Civil Application No.17009 of 2004 to Special Civil Application No.17012 of 2004 is hereby quashed and set aside. Special Civil Application No.17009 of 2004 to Special Civil Application No.17012 of 2004 are hereby allowed. Reservation over the land bearing Block No.9 of Village Magob, Taluka Choryasi, District Surat for the purpose of Agricultural Produce Market Committee, Surat in final sanctioned revised development plan, 2004 and revised under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 published in the Notification dated 02nd September, 2004 by the State Government is hereby quashed and set aside.
(S.J. Mukhopadhaya, C.J.) (J.B. Pardiwala, J) Anup Top