Kamlaben Prabhudas Patel vs Vadodara Urban Development ...
2021 Latest Caselaw 1158 Guj

         C/SCA/16676/2012                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16676 of 2012

                             With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2020
        In R/SPECIAL CIVIL APPLICATION NO. 16676 of 2012

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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             KAMLABEN PRABHUDAS PATEL & 3 other(s)
                           Versus
       VADODARA URBAN DEVELOPMENT AUTHORITY & 2 other(s)
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Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE FOR MR.NANDISH H
THACKAR(7008) for the Petitioner(s) No. 1,2,3,4
MR KM ANTANI, AGP for the Respondent(s) No. 3
MR HS MUNSHAW(495) for the Respondent(s) No. 1
MR MITUL K SHELAT(2419) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 2
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    CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 27/01/2021

                               ORAL JUDGMENT

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1. Heard learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr. Nandish Thackar for the petitioners, learned advocate Mr. H.S. Munshaw for respondent no.1 and learned advocate Mr. Mitul Shelat for respondent no.2 and learned Assistant Government Pleader Mr. K.M.A Antani for the respondent­State through video conference.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for issuing a writ in the nature of mandamus directing the respondent authorities to release the land bearing revenue survey nos. 111, 107, 106 and 103 paiki of Moje village Nagarwada, Taluka and District Vadodara from reservation in view of provisions of section 20 of the Gujarat Town Planning and Urban Development Act, 1976 (For short "the Act, 1976").

3. Learned advocate for the petitioners submitted that the controversy raised in this petition is similar to that in Special Civil Application No.3825/2000, Special Civil Application No.15153/2012 and Special Civil Application No.2191/2013. Relying upon the judgment of this Court (Coram : Hon'ble Mr. Justice Vipul M. Pancholi) in case of Shardaben Lallubhai Patel v. Vadodara Urban Development Authority in

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Special Civil Application No.3825/2000, judgment dated 31.01.2020, it was submitted that the facts being identical, similar order is required to be passed in this petition also.

4. Learned Senior Advocate Mr. Anshin Desai placed reliance upon the the letter dated 02.12.2004 communicated by Vadodara Urban Development Authority to M.S. University as well as map showing that the parcels of land of the petitioners are similar to the parcels of land which were the subject matter of Special Civil Application No.3825/2000 and allied matters. Learned Senior Advocate Mr. Desai submitted that this Court allowed the said writ petitions being Special Civil Application No.3825/2000 and allied matters and directed the respondents to release/de­reserve the land bearing Survey no. 108 situated at moje Nagarvad, Taluka and District Vadodara which was kept under reservation in favour of the petitioners therein.

5. Learned Senior Advocate Mr. Anshin Desai further submitted that in similar facts in case of Manek Culture Centre v. State of Gujarat, this Court (Coram :Hon'ble Mr. Justice Vipul M. Pancholi) in Special Civil Application No. 17873/2018 vide judgment dated 31.1.2020, passed similar order by declaring the designation/reservation of sub­ plot nos. 3 to 10 of Revenue Survey NO.1, Tikka No. C­9/1 situated at Taluka Vadodara, District

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Vadodara to have lapsed in view of provision contained in sub­section(2) of Section 20 of the Gujarat Town Planning and Urban Development Act, 1976.

6. On the other hand, learned advocate Mr. H.S. Munshaw for respondent no.1, at the outset, prays for time to file additional affidavit­in­ reply as he has been entrusted with this petition last month replacing the earlier advocate Mr. M.D. Pandya for Vadodara Urban Development Authority. In view of the fact that facts of this petition is similar to that of Special Civil Application No. 3825/2000 and allied matters, wherein the submissions, as canvased by learned advocate Mr. Munshaw now, are exhaustively dealt with by this Court, there is no need to file affidavit­in­reply in the matter, as it would be an empty formality.

7. Learned advocate Mr. Mitul Shelat appearing for respondent no.2 ­ M.S. University submitted that he is reiterating the same submissions which were made by him before this Court while arguing Special Civil Application No.3825/2000 and allied matters, as facts of this case are identical to that of writ petitions mentioned here­in­above.

8. In view of the above fact situation, it would be germane to refer to the judgment passed in Special Civil Application No.3825/2000 and

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allied matters, as facts of this petition are similar to the facts of the said petitions, which are as under :

"5. The brief facts leading to the filing of all these petitions are as under,

5.1 The petitioners are holding HUF property i.e. land bearing Revenue Survey No.108 situated at moje Nagarvad, Taluka & District : Vadodara admeasuring 11,635 Sq.Mtrs. (hereinafter referred to as "land in question"). The land in question was reserved under the Town Planning Scheme and the land in question is kept for recreation zone as per the communication dated 02.08.1976. The petitioners, therefore, made representation to the Vadodara Urban Development Authority (hereinafter referred to as "VUDA" for short) on 07.07.1979 for change of zone. In pursuance thereto, the petitioners received communication from the concerned respondent authority that the land in question is proposed for open space and garden purpose. The petitioners once again made representation to the respondent - VUDA and requested that the land in question be kept in residential or commercial zone. However thereafter, communication is received from the respondent - VUDA that the land in question is reserved for Botanical Garden for the respondent - MS University. Thus, the development plan was prepared by the respondent - VUDA and the land is kept for Botanical Garden for the respondent

- MS University. The petitioners once again raised objection.

5.2 The Government of Gujarat sanctioned the draft development plan submitted by the respondent - VUDA in exercise of power conferred under Section 17 of the Gujarat Town Planning & Urban Development Act, 1976 (hereinafter referred to as "Act of 1976") by issuing Notification in the official gazette on 22.12.1983. As per the said Notification, the land in question has been kept in reservation for Botanical Garden for the respondent - MS University. The petitioners once again made representation to

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the concerned respondent authority and requested to modify the draft development plan. From time to time, the petitioners made representations to the respondent authority. The petitioners received letter from the respondent - VUDA on 30.12.1996 that the land of the petitioner has been kept under reservation for Botanical Garden for respondent

- MS University in revised development plan sanctioned by the Government on 26.11.1996.

5.3 The petitioners, therefore, issued notice to the respondent - VUDA and the respondent - MS University by Registered Post on 22.01.1997 calling upon either to acquire/ purchase land of the petitioner at the market rate or release the land from the reservation, however, no reply has been given by the respondent authorities.

5.4 Therefore, the petitioners filed Special Civil Application No.3825/2000 before this Court and during the pendency of the said petition, the respondents revised the development plan for the land in question and once again, the land in question is reserved for the respondent - MS University. The said revised development plan came into force on 18.01.2012. The petitioners have therefore filed writ petition being Special Civil Application No.15153/2012 challenging the revised development plan issued by the respondent authorities.

5.5 Thereafter on 23.08.2012, the respondent ­ Collector, Vadodara passed an order, whereby it has been decided to initiate proceeding under Section 66 of the Gujarat Land Revenue Code (hereinafter referred to as "Revenue Code") and the parties were directed to maintain status quo with regard to the use of the land. The said order was passed without giving opportunity to the petitioners. Thereafter on 29.08.2012, the show cause notice is issued to the petitioners for taking action under Section 66 of the Revenue Code. The said show cause notice was issued after passing of the order, which is not permissible as per the case of the petitioners. The petitioners, therefore, initially filed Special Civil Application No.14605/2012 before this Court and the said

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petition was disposed of on 22.10.2012 with a direction that the petitioners shall file reply before the Collector and on receipt of such reply, the District Collector shall give opportunity of hearing to the petitioners. The petitioners, therefore, made representation/ filed reply, however vide order dated 28.12.2012, the District Collector rejected the representation of the petitioners, which led to filing of Special Civil Application No.2191/2013.

6. Heard learned Senior Counsel, Mr. Anshin Desai assisted by learned advocate, Mr. Nandish Thakkar for the petitioners in all matters, learned advocate, Ms. H.S. Munshaw as well as learned advocate, Ms. Maya Desai appearing for the respondent - VUDA in respective matter, learned advocate, Mr. Mitul Shelat appearing for the respondent - MS University and learned AGP Mr. K.M. Antani appearing for the respondent - State authorities.

7. Learned Counsel mainly contended that the land in question was reserved for the respondent - MS University since 02.08.1976 and the Notification was issued on 22.12.1983 and, hence, as the period of ten years was over on 22.12.1993, the petitioners issued Notice under Section 20(2) of the Act of 1976 on 22.01.1997 to the respondent - VUDA as well as the respondent - MS University, in whose favour, the land in question is reserved. It is submitted that no reply was given by the respondent - VUDA or the respondent - MS University to the said notice issued by the petitioners nor the land in question is acquired and, therefore as per the provision contained under Section 20(2) of the Act of 1976, reservation over the land in question has lapsed. It is further submitted that though first petition being Special Civil Application No.3825/2000 filed by the petitioners in the year 2000 is pending since 19 years, till date no steps are taken by the concerned respondent authorities for acquisition of the land in question nor the same is dereserved and, therefore, this Court may direct the respondent authorities to release the land in question from reservation.

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8. It is also contended that the right of the property is now considered to be not only constitutional right but also human right and, therefore, when the petitioners are not in a position to use the land in question as the same is kept under reservation, the property right as well as human right of the petitioner has been violated and, therefore, reliefs as prayed for in these petitions be granted.

9. Learned Counsel would further submit that in the petition filed in the year 2012 being Special Civil Application No.15153/2012, the petitioners have also challenged the revised development plan dated 18.01.2012.

10. In support of the aforesaid contentions, learned Counsel has placed reliance upon following decisions,

(1) In case of Chhabildas Vs. State of Maharashtra & Ors., reported in (2018) 2 SCC 784;

(2) In case of Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd. & Ors., reported in (2007) 8 SCC 705; (3) In case of Lachhman Dass Vs. Jagat Ram & Ors., reported in (2007) 10 SCC 448; (4) In case of N. Padmamma & Ors. Vs. S.

Ramakrishna Reddy & Ors., reported in (2008) 15 SCC 517;

(5) In case of Mahender Pal & Ors. Vs. State of Haryana & Ors., reported in (2009) 14 SCC 281;

(6) In case of Mohanlal Nanabhai Choksi Vs. State of Gujarat & Ors., reported in (2010) 12 SCC 726;

(7) In case of Dev Sharan & Ors. Vs. State of Uttar Pradesh & Ors., reported in (2011) 4 SCC 769;

(8) In case of Tukaram Kana Joshi & Ors. Vs. Maharashtra Industrial Development Corporation & Ors., reported in (2013) 1 SCC 353;

(9) In case of Bhimandas Ambwani Vs. Delhi Power Company Ltd., reported in (2013) 14 SCC 195; (10) In case of Prabin Ram Phukan & Anr. Vs. State of Assam & Ors., reported in (2015) 3 SCC

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605;

11. On the other hand, learned advocate, Mr. H.S. Munshaw as well as learned advocate, Ms. Maya Desai appearing for the respondent - VUDA in respective petition opposed these petitions and mainly submitted that the land in question was reserved for Botanical Garden for the respondent - MS University vide Notification dated 25.01.1984. It is further submitted that after a period of ten years, the respondent - Government sanctioned first revised development plan of the respondent - VUDA on 25.10.1996 under the provision of Section 17(1)(c) of the Act of 1976 and first revised development plan came into force on 26.11.1996. As per the said plan, the land in question was reserved for the respondent - MS University for Botanical Garden and, thereafter, second revised development plan was prepared and the objections were invited and ultimately, the respondent - State published Notification on 08.09.2010 and ultimately, Notification came into force on 18.01.2012. It is submitted that as per second revised development plan, the land in question was reserved for the respondent - MS University for public institutional purpose. It is, therefore, submitted that the land in question was reserved for the respondent - MS University after following due procedure envisaged under the provisions of the Act of 1976 and, therefore, there is no justification for di­ reservation.

12. Learned advocates appearing for the respondent - VUDA submitted that the provision of Section 20(2) of the Act of 1976 are not at all followed by the petitioners as notice under Section 20(2) of the Act of 1976 has not been issued to the respondent - MS University and, therefore, deeming provision would not be attracted. It is further submitted that public interest is defined under the Act of 1976 and the reservation for Institution is of paramount interest.

13. Learned advocates appearing for the respondent - VUDA further submitted that second revised development plan has commenced from 18.01.2012 and the period of ten years would be over in January, 2022 and, hence, the said period is not over and, therefore, the petition filed by the petitioners is premature. It is, therefore, urged that all these

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petitions be dismissed.

14. Learned advocate, Mr. Mitul Shelat appearing for the respondent - MS University mainly submitted that the notice under Section 20(2) of the Act of 1976 has been issued only to respondent - VUDA and the said notice has not been issued upon the head of the department of the respondent - MS University and, therefore, notice issued by the petitioners cannot be said to be valid notice and, therefore, deeming provision would not be attracted. In support of this contention, learned advocate has placed reliance upon the order dated 21.12.2015 passed by this Court in Special Civil Application No.2827/1998.

15. Learned advocate, Mr. Shelat would further submit that the writ petition being Special Civil Application No.15153/2012 challenging the Notification dated 18.01.2012 is premature because the petitioners would have to wait for a period of ten years from the date of issuance of the Notification and if the land in question is not acquired during the said period and if the notice as provided under Section 20(2) of the Act of 1976 is issued and, thereafter, the land is not acquired within stipulated period of six months, the petitioners can seek declaration. It is, therefore, submitted that the present petitions filed by the petitioners are premature and, therefore, same be dismissed.

16. Learned AGP Mr. Antani appearing for the State authorities has opposed these petitions and supported the contentions raised by learned advocates appearing for other respondents.

17. I have heard learned advocates appearing for the parties and also considered the submissions canvassed by learned advocates appearing for the parties.

18. Before dealing with the facts of the case and the submissions canvassed by learned advocates appearing for the parties, I would like to refer to provision of Sections 20 and 21 of the Act of 1976, which reads as under,

"Section 20. Acquisition of land. (1) The area development authority or any other authority for whose purpose land is designated

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in the final development plan for any purpose specified in clause (b), clause (d), clause

(f), clause (k), clause (n) or clause (o) of sub­sec. (2) of Sec. 12, may acquire the land,

(a) by an agreement, or;

(b) in lieu of any development right by granting the owner against the area of land surrendered free of cost and free from all encumbrances;

(c) under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

(2) If the land referred to in sub­section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894 (1 of 1894) are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of the land as aforesaid shall be deemed to have lapsed.

Section 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 provision of sections 9 to 20 , shall so far as may be, apply to such revision."

19. On going through the material available on record, it would emerge that the land in question is kept under reservation since last approximately 40 years i.e. since 1979 and when the draft development plan of VUDA was submitted to the respondent - State Government, the land in question was reserved for different purpose at different point of time and the draft development plan was sanctioned and published on 25.01.1984, wherein the land in question was reserved for Botanical Garden for respondent - MS University. The period of ten years was over on 25.01.1994 and, thereafter, the revised development plan was published and came into force on 26.11.1996 and thus, the period of ten years was over on

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26.11.2006. However in the meantime, on 22.01.1997, the petitioners issued Notice under Section 20(2) of the Act of 1976 to the respondent - VUDA and the respondent - MS University, copy of the said notice is placed on record at Page No.53 of the compilation of Special Civil Application No.15153/2012. If the said notice is carefully seen, it is revealed that the notice is issued to the respondent - VUDA and copy of the same was sent to Registrar, MS University/ Executive Engineer, Land & Estate Department of MS University, Vadodara. The technical contention is raised by learned advocate, Mr. Shelat appearing for the respondent - MS University that the notice is not addressed to the Vice Chancellor of the University and, therefore, the notice issued by the petitioners cannot be termed as valid notice. However according to this Court, the said contention is misconceived.

20. The object of provision contained in Section 20(2) of the Act of 1976 is that after a period of ten years, the land owner or the person interested can inform the concerned authority and ask them to acquire the land reserved by paying compensation or land reserved can be released from the reservation. After the receipt of the notice, if no steps are taken by the concerned authority for acquisition of the land, deeming provision contained in said sub­ section would be attracted. In the present case, it is not the case of the respondent - University that the notice issued by the petitioners was not received by the concerned authority of the University. Thus when the notice is received by the Registrar of the University, it is not open for the respondent - University to contend that the provision would not be applicable.

21. The decision rendered by this Court in Special Civil Application No.2827/1998 upon which reliance has been placed by learned advocate, Mr. Shelat, would not render any assistance to the respondents. It is required to be noted that in the said decision, this Court has observed that the petitioners addressed notice to the respondent - VUDA and not to the MS University i.e. the authority for whom the land in question was reserved and, thereafter, it was observed that the notice to the authority concerned requiring it to acquire the land is necessary. In the present case, notice was received by the Registrar of MS University. Even

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otherwise, at this stage, it is pertinent to note that in the said case, though notice was not issued to the MS University under Section 20(2) of the Act of 1976 and though this Court has observed that such notice is required to be served, ultimately, this Court has observed in Para Nos.19.1 and 19.2 as under,

"19.1 It will be open for respondent no.4­ M.S. University to acquire the land in question as provided under Section 20(2) of the Act that by agreement or under the provisions of Land Acquisition Act, 1894 within a period of 12 months by way of an additional opportunity for the purpose for which the land was so reserved/designated in the final development plan.

19.2 In case if the aforesaid directions are not adhere to within 12 months, the reservation of the land in question shall stand lapsed."

22. Thus from the aforesaid decision upon which reliance has been placed by learned advocates for the respondents, it is clear that the intention of this Court was to strike balance between the public interest and the private interest and, therefore, chance was given to the respondent - MS University to acquire the land within stipulated time limit. In the present case, the writ petition being Special Civil Application No.3825/2000 filed by the petitioners is pending since 2000 before this Court and, therefore, it was open for the respondent - MS University to acquire the land in question during the period of these 19 years, however till date, no steps are taken by the respondent - MS University for acquisition of the land in question. Therefore keeping in view the decision rendered by this Court in the aforesaid order passed in Special Civil Application No.2827/1998, this Court has to strike balance between the public interest and private interest and, therefore, when the land in question is under reservation since last more than 40 years and the present petition is pending since more than 19 years, according to this Court, direction can be given to the respondent authorities to de­reserve the land in question forthwith.

23. The contention is raised by the respondents that

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in Special Civil Application No.15153/2012, the petitioners have challenged the final development plan sanctioned by the State Government on 18.01.2012 and the period of ten years is not over and, therefore, the petition is premature. However it is pertinent to note that similar contention was raised by the respondents in the aforesaid petition being Special Civil Application No.2827/1998 and this Court has recorded the said contentions in Para No.6.2 as under,

"6.2 It was contended that as stated in the additional affidavit­in­reply by respondent no.4­University, there is no challenge by the petitioners to the reservation which is made in the revised final development plan sanctioned by the State Government on 18/01/2012 and the earlier notification which is challenged by the petitioners in this petition is substituted by notification dated 18/01/2012. On both these grounds, it was submitted that the petition deserves to be dismissed."

24. Thereafter this Court as stated hereinabove, has disposed of the said petition on 21.12.2015 by granting liberty to the respondent - University to acquire the land in question as provided under Section 20(2) of the Act of 1976 by agreement or under the provision of the Land Acquisition Act within a period of twelve months by way of additional opportunity for the purpose for which the land was so reserved/ designated in the final development plan. Thus though the period of ten years from 18.01.2012 was not over, this Court has granted such liberty to the respondent - MS University. Hence according to this Court, the respondents have wrongly placed reliance upon the decision rendered by this Court in the aforesaid writ petition being Special Civil Application No.2827/1998. On the contrary, the said decision would he helpful to the petitioners.

25. In case of Chhabildas (supra), the Hon'ble Supreme Court has observed in Para Nos.22 and 23 as under,

"22. It is, thus, clear that the scheme of Sections 126 and 127 would leave nobody in doubt, for the reason that if a period of 10

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years has 24 elapsed from the date of publication of the plan in question, and no steps for acquiring the land have been taken, then once a purchase notice is served under Section 127, steps to acquire the land must follow within a period of one year from the date of service of such notice, or else the land acquisition proceedings would lapse.

23. On a conspectus of the above authorities, the following position in law emerges:

23.1 In all Section 49 cases, where a purchase notice has been served and is confirmed within the period specified, the appropriate authority must make an application to acquire the land within one year from the date of confirmation of the notice. If it does not do so, the reservation, designation, etc. shall be deemed to have lapsed.

23.2 If within the period specified in Section 49(7), the appropriate authority makes the requisite application, then the State Government may acquire the land by making a declaration under Section 6 of the Land Acquisition Act as set out under Section 126(4), wherein the market value shall be the market value of the land as on the date of the Section 6 declaration. Ordinarily, such declaration must be made within 1 year of the date of receipt of the requisite application. In case this not done, it will be open to the aggrieved person to move the Court to direct the State Government to make the requisite declaration immediately.

23.3 If 10 years have passed from the date of publication of the plan in question, and a purchase notice has been served under Section 127, and no steps have been taken within a period of one year from the date of service of such notice, all proceedings shall be deemed to have lapsed. Thus, even in cases covered by Section 49, the drill of Section 126(4) and Section 127 will have to be followed, subsequent to the appropriate authority making an application to acquire

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the land within the period specified in Section 49(7)."

26. At this stage, this Court would like to refer to the decisions rendered by the Hon'ble Supreme Court. In the case of Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. & Ors., reported in AIR 2003 SC 511, the Hon'ble Supreme Court has observed in para 27, 32 to 35 and 38 as under:

"27. 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 user thereof except in the mode and manner laid down under statute would not be presumed.

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32. Sub­section (2) of Section 20, however, carves out an exception to the exercise of powers by the State as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under sub­section (1) of of Section 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further in the event an owner or a person interested in the land serves a notice in the manner specified therein, certain consequences ensue, namely, the designation of the land shall be deemed to have lapsed. A legal fiction, therefore, has been created in the said provision.

33. The purpose and object of creating a legal fiction in the statute is well­ known. When a legal fiction is created, it must be given its full effect. In East End Dwelling Co. Ltd. v. Finsbury Borough Council, [(1951) 2 All.E.R 587], Lord Asquith, J. stated the law in the following terms:­ "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the

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consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

The said principle has been reiterated by this Court in M. Venugopal v.

Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. & Anr. [(1994) 2 SCC 323]. See also Indian Oil Corporation Limited v.

Chief Inspector of Factories & Ors.etc., [(1998) 5 SCC 738], Voltas Limited, Bombay v. Union of India & Ors.,[(1995) Supp. 2 SCC 498], Harish Tandon v. Addl. District Magistrate, Allahabad, U.P. & Ors. [(1995) 1 SCC 537] and G. Viswanathan etc. v. Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras & Anr. [(1996) 2 SCC 353].

34. The relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse.

35. This Court in Municipal Corporation of Greater Bombay's case (supra), in no uncertain terms while construing the provisions of Section 127 of the Maharashtra Regional and Town Planning Act, 1966 held the period of ten years as reasonable in the

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following words :­ "While the contention of learned counsel appearing for the appellant that the words 'six months from the date of service of such notice' in Section 127 of the Act were not susceptible of a literal construction, must be accepted, it must be borne in mind that the period of six months provided by Section 127 upon the expiry of which the reservation of the land under a Development Plan lapses, is a valuable safeguard to the citizen against arbitrary and irrational executive action. Section 127 of the Act is a fetter upon the power of eminent domain. By enacting Section 127 the legislature has struck a balance between the competing claims of the interests of the general public as regards the rights of an individual." It was observed that :

"The Act lays down the principles of fixation by providing first, by the proviso to Section 126(2) that no such declaration under sub­section (2) shall be made after the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan, secondly, by enacting sub­ section (4) of Section 126 that if a declaration is not made within the period referred to in sub­ section (2), the State Government may make a fresh declaration but, in that event, the market value of the land shall be the market value at the date of the declaration under Section 6 and not the market value at the date of the notification under Section 4, and thirdly, by Section 127 that if any land reserved, allotted or designated for any purpose in any development plan is not acquired by agreement within 10 years from the date on which a final regional plan or development plan comes into force or if proceedings for the acquisition of such land under the Land

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Acquisition Act are not commenced within such period, such land shall be deemed to be released from such reservation, allotment or designation and become available to the owner for the purpose of development on the failure of the Appropriate Authority to initiate any steps for its acquisition within a period of six months from the date of service of a notice by the owner or any person interested in the land. It cannot be doubted that a period of 10 years is long enough., The Development or the Planning Authority must take recourse to acquisition with some amount of promptitude in order that the compensation paid to the expropriated owner bears a just relation to the real value of the land as otherwise, the compensation paid for the acquisition would be wholly illusory. Such fetter on statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed." It is true that Section 21 of the Act imposes a statutory obligation on the part of the State and the appropriate authorities to revise the development plan and for the said purpose Section 9 to 20 'so far as may be' would be applicable thereto, but thereby the rights of the owners in terms of sub­ section (2) of Section 20 are not taken away.

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38. Section 21 does not envisage that despite the fact that in terms of sub­section (2) of Section 20, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a land­owner under Section 22 of getting the land defreezed. In the event the submission of the learned Solicitor General is accepted the same would completely render the

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provisions of Section 20(2) otiose and redundant."

38. In the case of Prabhaben Harshadray Desai & Ors., v. State Government & Ors., reported in 2008(3) GLH 120, this Court has observed in para 24, 25 and 30 as under:

"24. From the principles of law enunciated in the judicial pronouncements referred to hereinabove, it is evident that the legal fiction contained in Section 20(2) of the Town Planning Act will come into play on the service of a notice upon the concerned authority, requiring it to acquire the land within a period of six months from the date of service of such notice and, if the land is not so acquired within the stipulated period, or no effective steps are commenced for its acquisition, the reservation upon the land shall be deemed to have lapsed. The language of Section 20(2) is crystal clear, unambiguous and leaves no manner of doubt about the intention of the Legislature in enacting this provision and creating the legal fiction. Once the stipulated period of time i.e. ten years has elapsed and the land has not been acquired for the purpose for which it is designated or reserved, the land owner or person interested in the land has a right to serve the notice upon the concerned authority to acquire the land or take effective steps for its acquisition within six months. Inspite of this,if the authority concerned does not do the needful as required by Section 20(2) of the Town Planning Act, then the land cannot be reserved in perpetuity and the land owner cannot be deprived of his right to use the land for the purpose permissible under the Town Planning Scheme. The law does not contemplate a situation where the concerned authority does not take necessary action to utilise the land for the purpose for which it was reserved and, at the same time, deprive the land owners from using it as permitted by law, after the coming into effect of the legal fiction. When the ingredients of sub­section (2) of Section 20 are present and the requirement of law is

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met, then the reservation upon the land would automatically lapse.

25. In the present case, the co­owner of the land in question, Shri Amrutlal Maganlal Desai, issued notice dated 18­9­1995 under the provisions of Section 20(2) of the Town Planning Act, requiring the concerned authority to take steps for the acquisition of the land in question within six months. It is not the case of the respondents that this notice does not meet with the requirements of Section 20(2) of the Town Planning Act. Admittedly, the land in question has not been acquired till date and no effective steps have been commenced for its acquisition. No notice under the provisions of Section 4 of the Land Acquisition Act,1894, has been issued till date. Mere intra­departmental communication cannot be construed as a step towards acquisition of the land and, therefore, the reservation upon the land is deemed to have lapsed and the legal fiction as provided for in Section 20(2) has to be given effect to after the stipulated period of time.

30. Lastly, the question whether the petitioners can claim the benefit of the notice issued by a co­owner of land can now be looked into. A contention has been raised by the learned counsel for the respondents Nos.2 and 3 that the notice dated 18­9­1995, under the provisions of Section 20(2) of the Town Planning Act, was not issued by the petitioners but by Shri Amrutlal Maganlal Desai, who was the co­owner of the land in question and, therefore, the petitioners cannot get the benefit of the said notice and the deeming fiction,as contained in Section 20(2) of the Town Planning Act cannot be given effect, as far as the land of the petitioners is concerned. If the provisions of sub­section (2) of Section 20 are perused, it is evident from a plain meaning thereof that the legal fiction, culminating in the deemed lapse of reservation upon the land, shall operate upon the service of a notice on the concerned authority, requiring it to acquire

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the land within a period of six months from the issuance thereof and if the land is not acquired within six months and no effective steps are commenced for its acquisition, the reservation upon the land shall be deemed to have lapsed. The notice under the provisions of Section 20(2) is to be given by the "owner" or "any person" interested in the land. Admittedly, the notice dated 18­9­1995 was given by Shri Amrutlal Maganlal Desai, one of the co­owners of the land. The petitioners are also co­owners of the said land and can, therefore, be said to be interested in it. The effect of reservation is upon the land and not upon the owner or person interested in the land. The co­owner issued the notice regarding the very same land as also owned by the petitioners. The plain and unambiguous language of sub­ section (2) of Section 20 does not preclude the petitioners, who are also co­owners of the land, from getting the benefit of the deemed provision. Just because the notice was issued by the co­owner, cannot deprive the petitioners of the legal consequences of the same, since the land in question is the same."

28. In the case of Gujarat Housing Board v. State of Gujarat rendered in Letters Patent Appeal No.476 of 2018, the Hon'ble Division Bench of this Court, after considering the decisions rendered by the Hon'ble Supreme Court as well as other Hon'ble Division Bench of this Court, has observed in para 23 to 25 as under:

"23. From the aforesaid decisions rendered by the Hon'ble Supreme Court as well as Division Bench of this Court, it is clear that Sections 20 and 21 of the Act are required to be read conjunctively with Section 17 of the Act. Section 21 of the Act imposes a statutory obligation on the part of the State and the appropriate authorities to revise the development plan and for the said purpose Sections 9 to 20 'so far as may be' would be applicable thereto, but thereby the rights of the owners in terms of Section 20(2) of the Act are not taken away. Section 21 does not

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envisage that despite the fact that in terms of Section 20(2) of the Act, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. It is further clear that Section 20 does not manifest a legislative intent to curtail or take away the right acquired by the land owner under Section 20(2) of the Act of getting the land de­reserved. The deeming fiction for lapsing of the reservation is not to adversely affect even if the land is re­reserved under Section 21 of the Act. If the deeming fiction has already come into operation and the reservation has lapsed and the re­ reservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. The right so revived on account of the lapsing of the reservation under Section 20(2) of the Act would continue even after the re­ reservation. Thus, we are of the view that issue involved in the present appeals is squarely covered by the aforesaid decisions rendered by the Hon'ble Supreme Court as well as the Division Bench of this Court.

24. The contention raised by the learned advocate Mr. Ravani appearing for the appellant Board that at the time of filing the petitions, when the petitions were premature, the learned Single Judge ought not to have allowed the amendment and ought not to have granted the relief on the basis of such an amendment in favour of the petitioners. However, the said contention is misconceived. As observed hereinabove, during the pendency of the petitions, period of 10 years was over in the year 2014. Even thereafter no steps were taken by the appellant Board for acquisition of the land in question and therefore petitioners issued statutory notice under Section 20(2) of the Act on 01.08.2016. Even after the period of six months was over, no steps were taken by the appellant

- Board and therefore the amendment was moved. Learned Single Judge allowed the

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amendment. The said order granting amendment has attained finality and the appellant Board has not challenged the said order by filing an appeal. Thus, at this stage, it is not proper on the part of the appellant to contend that the learned Single Judge has committed an error in allowing the petitions on the ground of lapsing of the reservation.

25. Learned advocate Mr. Ravani further contended that the petitioners, who have purchased the land in question in the year 2008, cannot object for the reservation of the land in question as they have not suffered any hardship. However, the said contention is also misconceived. If the provisions contained in sub­section (2) of Section 20 of the Act is carefully seen, it is clear that if the land 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 proceeding under the Land Acquisition Act, 1894 (1 of 1894) are not commenced within such period, the owner or any person interested in the land can issue the notice. In the present case, the original owners suffered reservation and the petitioners are the purchasers of the land in question from the original owners and when the land in question is not acquired by the appellant within the stipulated time limit, the petitioners can also be said to be the persons interested as well as the owners who can issue the notice under Section 20(2) of the Act."

29. The Hon'ble Division Bench of this Court in case of State of Gujarat Vs. Hariben Meghajibhai Jasoliya delivered in the decision rendered in Letters Patent Appeal No.1244 of 2015 has observed in para 9 as under:

"9. The attempt made to contend that the petitions could be said as infructuous on the date when the same were filed in the year 2014 because of the new draft development plan or revised draft development plan were published on

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17.12.2013, in our view, cannot be accepted for two reasons; first is that the deeming fiction for lapsing of the reservation is not to adversely affect even if the land is re­reserved under Section 21 of the Act and the second is that if the deeming fiction has already come into operation and the reservation has lapsed and the re­ reservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. On the contrary, the right so revived on account of the lapsing of the reservation would continue even after the re­reservation. Hence, the said contention cannot be accepted."

30. From the aforesaid decisions rendered by the Hon'ble Supreme Court as well as Division Bench of this Court, it is clear that Section 21 does not envisage that despite the fact that in terms of Section 20(2) of the Act of 1976, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 of the Act of 1976 does not manifest a legislative intent to curtail or take away the right acquired by a land owner under Section 22 of the Act of 1976 of getting the land defreezed. Thus deeming fiction for lapsing of the reservation is not to adversely affect even if the land is re­reserved under Section 21 of the Act of 1976. If the deeming fiction has already come into operation and the reservation has lapsed and the re­ reservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. On the contrary, the right so revived on account of the lapsing of the reservation would continue even after the re­reservation. Hence, even if the land in question is re­reserved under the revised development plan dated 18.01.2012, it would not affect the right of the petitioners.

30. In a judgment in case of Chairman, Indore Vikas Pradhikaran (supra), the Hon'ble Supreme Court has observed in Para Nos.53, 54 and 55 as under, "53. The right of property is now considered to be not only a constitutional right but also

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a human right.

54.   The Declaration of Human           Rights       (1789)
      enunciates under Article 17
               "since   the    right   to   property   is

inviolable and sacred, no­one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".

Further under Article 217 (IIII) of 10th December, 1948, adopted in the General Assembly Resolution it is stated that : (i) Everyone has the right to own property alone as well as in association with others. (ii) No­one shall be arbitrarily deprived of his property.

55. Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment etc. but now human rights have started gaining a multifacet approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. As President John Adams (1797­1801) put it,:

"Property is surely a right of mankind as real as liberty."

Adding, "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence"."

32. The aforesaid decisions rendered by the Hon'ble Supreme Court have been followed in other decisions rendered by the Hon'ble Supreme Court, upon which reliance has been placed by learned advocate for the petitioners.

33. Thus, the property right is now considered to be not only constitutional right but human right and, therefore, when the petitioners are deprived of their property right and thereby human right of the petitioner has been violated by the respondents

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without following proper procedure of law, by which, the land in question of the petitioners is kept under reservation since last more than 40 years, this Court is of the view that reliefs as prayed for in the petitions are required to be granted in favour of the petitioners.

34. In the circumstances, all these petitions are allowed. Therefore, the respondents are hereby directed to release / de­reserve the land bearing Survey No.108 situated at moje Nagarvad, Taluka & District : Vadodara, which is kept under reservation, in favour of the petitioners. The impugned orders dated 23.08.2012 as well as dated 28.12.2012 produced at Annexure­E & L respectively to Special Civil Application No.2191/2013 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted."

9. In view of above, without assigning separate reasons and adopting the reasonings as reproduced here­in­above, the respondents are hereby directed to release/de­reserve the land bearing Survey nos. 111, 107, 106 and 103 paiki of Moje village Nagarwada, Taluka and District Vadodara which is kept under reservation in favour of the petitioners.

10. Petition is disposed of. Rule is made absolute to the aforesaid extent.

11. In view of order passed in the Special Civil Application, no order is required to be passed in the Civil Application. Civil Application stands disposed of accordingly.

Registry is directed to provide a copy of writ

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of this judgment to learned advocate for the petitioner through email so as to enable him to serve the same upon the respondents through Email/ Registered Post AD.

Direct service is permitted.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR