Gujarat High Court
Kalpanaben Pankajbhai Shah vs Bhavnagar Area Development ... on 14 October, 2022
Bench: A. P. Thaker
C/SCA/3599/2014 JUDGMENT DATED: 14/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3599 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KALPANABEN PANKAJBHAI SHAH
Versus
BHAVNAGAR AREA DEVELOPMENT AUTHORITY & 2 other(s)
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
MS. JYOTI BHATT, AGP for the Respondent(s) No. 3
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 14/10/2022
ORAL JUDGMENT
1. The petitioner has preferred this petition under Article 226
of the Constitution of India for the following reliefs:
"(A) To issue a writ of mandamus or a writ in the nature of
C/SCA/3599/2014 JUDGMENT DATED: 14/10/2022
mandamus or any other appropriate writ, order or direction by
quashing and setting aside Notification dated 17.12.2013
whereby Draft Development Plan of Bhavnagar of 2013 has been
sanctioned by the Corporation as suggested by Bhavnagar Area
Development Authority which is contrary to provisions of law and
against the judgment of the Hon'ble Supreme Court in case of
Bhavnagar University v. Palitana Sugar Mill as reported in 2003
(2) SCC 111 and declare that there is no reservation for Draft
Development Plan Road passing from plot No.8/B owned by the
petitioner;
(B) Pending admission, hearing and final disposal of this
petition, YOUR LORDSHIPS may be pleased to direct the
respondent Municipal Corporation to permit the petitioner to
construct bungalow and to grant the permission in accordance
with prevailing Development Regulations, without considering
any deduction of reservation and discharge the petitioner from
undertaking given;
(C) YOUR LORDSHIPS may grant ad-interim relief in terms of
prayer clause (B);
(D) YOUR LORDSHIPS may pass such other and further orders
as this Honourable Court may deem fit and proper in favour of
the petitioners in the interest of justice and circumstances of the
case."
2. The brief facts of the petition are as under:
2.1 The petitioner acquired land bearing Plot No. 8/B , Ward
No.7, Sheet No. 241, Survey No.2024, 2025, 2026 and
consolidated City Survey No. 2024 admeasuring 1105.64 sq.
Yards equivalent to 924.43 sq. Mtrs known as Plot No. 8/B,
by registered sale deed on 9.9.2009 from Archit
Corporation through its partner Mrs. Harshaben Jivrajbhai
C/SCA/3599/2014 JUDGMENT DATED: 14/10/2022
Patel. That the said plot is a lease hold plot of Bhavnagar
Municipal Corporation, which was in possession of
Bhupatray Nathalal Shah and thereafter, he got approval of
bifurcation of Plot No.8 into Plot No. 8A and 8B from the
Bhavnagar Municipal Corporation and thereafter Archit
Corporation has acquired Plot No. 8/B by registered sale
deed on 19.2.2008. That the Municipal Corporation has
passed Resolution on 13.5.2010 whereby the name of the
petitioner has been entered into record of the Corporation
as lease holder.
2.2 That the total usable area of the plot was 920.08 sq. Mtrs
out of which 206.18 sq, mtrs is proposed to be reserved for
proposed D.P. Road. Hence, the petitioner had only 713.90
sq. Mtrs and out of 713.90 sq. mtrs the petitioner
constructed area of 43.40 for the purpose of room for
watchman and had given undertaking that the petitioner
will not construct further till reservation is lifted by the
government. That as per the proposal of the reservation
under the Development Plan of Bhavnagar Urban
Development Authority, area of 206 sq. mtrs is to be
deducted for the purpose of widening of road from the Plot
of the petitioner.
2.3 According to the petitioner, the purpose of widening of
existing D.P. road is not fruitful as onward side that road is
completely blocked and not going further. That abating that
road, there is NCC ground and NCC people have refused to
give their NOC for laying road further from that area
C/SCA/3599/2014 JUDGMENT DATED: 14/10/2022
onward. It is contended that the reservation under
Development Plan of 2001 has already lapsed and even
after 10 years thereof, the Plot of the petitioner has not
been acquired by the respondent Corporation nor paid
compensation nor widened the road as beyond the Plot of
the petitioner, there is pucca construction.
2.4 It is also alleged that the son of the petitioner made
representation to the Chief Minister vide his communication
dated 9.5.2011and on 2.7.2011. On 6.7.2011, Bhavnagar
Municipal Corporation wrote a letter to the Bhavnagar Area
Development Authority stating that the Corporation is of
the view that there is strong representation from the
petitioner and other residents of Vidhyanagar Jain Society
and has prayed to cancellation of 18 mtrs D.P. Road and the
Corporation has given opinion to cancel the same. It is also
contended that inspite of the objection raised by the
petitioner and others and the communication of Bhavnagar
Municipal Corporation for cancellation of the D.P. Road, the
Authority has continued the said reservation again for
further period of 10 years on petitioner's plot in the name
of proposed 18 mtrs Draft D.P. Road in the revised
development plan by notification dated 17.12.2013.
2.5 According to petitioner, as the reservation proposed in the
new development plan is erroneous and illegal, the
petitioner earlier had given Notice under Section 20(20 of
the Gujarat Town Planning and Urban Development Act,
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1976 to acquire land or releasing the same. That inspite of
such Notice, the Authority did not initiate any action for
acquisition within stipulated period of 6 months as provided
in the aforesaid Act.
2.6 It is contended that earlier submitted Plan before the
Corporation which was sanctioned by the Corporation on
11.8.2010 by Raja Chitthi No. 42 for residential purpose but
because the proposed road is passing from the land, the
petitioner is not able to carry out construction on the land. .
On all these grounds, the petitioner has filed the present
petition, raising the grievance against the action of the
Corporation and as stated in the relief as referred to
hereinabove.
2.7 Affidavit-in-reply on behalf of respondent No.1 i.e.
Bhavnagar Area Development Authority has been filed
wherein it is submitted that the Bhavnagar Area
Development Authority has proposed a D.P. Road having
width of 18 mtrs instead of 12 mtrs in the second revised
Development Plan. According to it, the property in question
as well as the entire area are within the limitation of
Bhavnagar Municipal Corporation and, therefore, so far as
the property in question is concerned, necessary
development permission is granted by Bhavnagar Municipal
Corporation. It is also submitted that the Bhavnagar Area
Development Authority as well as Municipal Corporation
issued representation against the proposed D.P. road
C/SCA/3599/2014 JUDGMENT DATED: 14/10/2022
having width of 18 mtrs as it is likely to cause injury to the
owners of the properties situated on the road side. It is
contended that considering the said representation,
Bhavnagar Municipal Corporation has requested it, by letter
dated 6.7.2011 to cancel the said widening of the D.P. road
having width of 18 mtrs.
2.8 It is also contended that the Bhavnagar Area Development
Authority is constituted under the provisions of the Gujarat
Town Planning and Urban Development Act, 1976 and it has
prepared development plan as per the provisions of Section
19 of the Act and, therefore, the proposal of the Bhavnagar
Municipal Corporation was considered and the matter was
placed before the Board of Members of Bhavnagar Area
Development Authority. It is contended that the Board
Members of the Authority in its meeting dated 21.6.2014,
resolved that the existing D.P road having 12 mtrs under
the provisions of revised Development Plan be maintained.
In another words, there would not be widening of road as
provided in second revised Development Plan and ultimate
result would be that the Petitioner and other owners of the
properties on the road side will not be adversely affected. It
is also contended that it will sent its proposal within a short
time to respondent No.3, as per the provisions of Section 19
of the Act for further action. It is contended that now the
present Special Civil Application has become infructuous in
view of its reply and, therefore, prays to dismiss the same.
C/SCA/3599/2014 JUDGMENT DATED: 14/10/2022
3. Heard Mr. B.T. Rao, learned advocate for the petitioner, Mr.
H.S. Munshaw, learned advocate for respondent Nos. 1 and
2 and Mr. Jyoti Bhatt, learned AGP for the respondent
State. Perused the material placed on record and the
decisions cited at bar.
4. Mr. Rao, learned advocate for the petitioner has submitted
the same facts which are narrated in the memo of petition
and has stated that the reservation was already continued
for 10 years. He has submitted that during that 10 years no
road was made as NCC people had not granted permission
for laying down road. He has submitted that the petitioner
is unable to utilize its property. He has also submitted that
since the road was not made within the development
period, the petitioner had issued legal notice to respondent
to acquire the land. However, the land has not been
acquired nor any reply has been given to the legal notice.
He has submitted that even other people have also raised
objection, however, inspite of such objection, the Authority
has for second time, passed order for reservation of land
for the road, on 17.12.2013. He has submitted that for
constructing the road, the permission of the NCC people is
needed however, NCC people have denied the same. He has
also submitted that even the Bhavnagar Municipal
Corporation has already informed the Authority for
cancellation of the proposed D.P. Road. He has submitted
C/SCA/3599/2014 JUDGMENT DATED: 14/10/2022
that inspite of this, Respondent No.1 has issued impugned
Notification which is not sustainable in the eyes of law
especially in view of the decision of the Apex Court
reported in (2003) 2 SCC 111 and (2008) 4, SCC 144. He has
prayed to allow the present petition and set-aside the
impugned Notification of Draft Development Plan of the
Bhavnagar, 2013
5. Mr. Munshaw, learned advocate for the respondent Nos. 1
and 2 has relied upon the contention raised in the affidavit-
in-reply of respondent No.1 and has stated that now there
would be no widening of the road of 18 mtrs but only 12
mtrs. He has submitted that the grievance of the petitioner
and others has already been considered by the Bhavnagar
Area Development Authority and, therefore, this petition
may be dismissed.
6. Ms. Jyoti Bhatt, learned AGP has also submitted that in view
of the affidavit of the respondent No.1, the petition has
become infructuous and, therefore, this petition may be
dismissed.
7. Having considered the averments made on behalf of both
the sides and considering the material placed on record, it
appears that there is no dispute regarding the reservation
of the land in question for initial period of 10 years by the
concerned Authority for the purpose of D.P. road . It also
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appears from the record that the first Development Plan
has come to an end and now the new Development Plan has
been proposed wherein also the reservation for the same
purpose i.e. D.P. road has been made. The said Notification
is at Annexure "I", page-44 dated 17.12.2013. In view of the
affidavit-in-reply it clearly appears that the Bhavnagar Area
Development Authority has received objection from the
public and has also received communication from the
Bhavnagar Municipal Corporation for construction of D.P.
road.
7.1 In the case of Bhavnagar University v. Palitana Sugar Mill
Private Ltd. and others, reported in (2003) 2 SCC 111, the
Apex Court has in Paras-27, 29, 30, 31, 32, 34, 36, 37, 38 and
39, observed 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".
"29. By reason of the provision of the said Act, a reasonable
restriction, has been imposed upon the owner on the user of his
property. In terms of Section 12 of the said Act, town planning is
contemplated through preparation of draft development plan
which contains not only proposals for designating certain area
for residential, industrial, commercial, agricultural or
recreational purposes but also for the purposes for maintaining
environment and ecological balance by setting up zoological
C/SCA/3599/2014 JUDGMENT DATED: 14/10/2022
gardens, green belts, natural reserves and sanctuaries . In terms
of such development plan reservation of certain land for public
use is also provided. From the relevant provisions of the said Act,
as noticed hereinbefore, it is absolutely clear that in terms
thereof the State Government is made the ultimate authority to
publish a development plan, inter alia, providing for designation
or reservation of the land. The State Government while arriving
at its conclusion as regards public interest involved in the matter
is required to arrive at its satisfaction on objective basis as
provided in terms of sub-section (2) of Section 17 to the effect
that the lands in respect whereof reservation is proposed to be
made can be acquired for the fulfillment of the object therefor
either by agreement or compulsory acquisition within the period
specified therein. It has not been disputed before us nor is it
necessary to consider in the facts and circumstances of this case
as to whether establishment of the educational institutions or
universities would be covered by the provisions of sub-section (2)
of Section 12 thereof.
30. Sections 20 and 21 of the said Act are required to be read
conjunctively with Sections 12 and 17. We may notice that clause
(k) of sub-section (2) of Section 12 does not find mention in sub-
section (2) of Section 17 as regards proposed reservation for the
State and other statutory authorities but clauses (n) and (b) of
sub-section (2) of Section 12 are specifically mentioned in Section
20. In Section 20, provisions of clauses (b), (d), (f), (k) and (o) of
sub-section (2) of Section 12 have specifically been mentioned.
The High Court has proceeded on the basis that the words
'designation' or 'reservation' are interchangeable for the purpose
of the Act. The said finding of the High Court is not in question.
31. Whereas in terms of Sections 12 and 17 of the said Act,
the reservation and designation have been provided, sub-section
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(1) of Section 20 thereof only enables the authorities to acquire
the land designated or reserved for the purpose specifically
mentioned in clauses (b) and (n) of sub-section (2) of Section 12
as also other clauses specified therefor either by acquisition or
agreement or in terms of the provisions of the Land Acquisition
Act. Sub-section (1) of Section 20 is merely an enabling provision.
32. Sub-section (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 sub-section (1) of Section 20
thereof is not acquired or proceedings under the Land Acquisition
Act are not commenced and further in the event an owner or a
person interested in the land serves a notice in the manner
specified therein, certain consequences ensue, namely, the
designation of the land shall be deemed to have lapsed. A legal
fiction, therefore, has been created in the said provision".
"34. The relevant provisions of the Act are absolutely clear,
unambiguous and implicit. A plain meaning of the said provisions,
in our considered view, would lead to only one conclusion,
namely, that in the event a notice is issued by the owner of the
land or other person interested therein asking the authority to
acquire the land upon expiry of the period specified therein viz.
ten years from the date of issuance of final development plan
and in the event pursuant to or in furtherance thereof no action
for acquisition thereof is taken, the designation shall lapse".
"36. The question, however, is as to whether only because the
provision of Section 20 has been referred to therein; would it
mean that thereby the Legislature contemplated that the time of
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ten years specified by the Legislature for the purpose of
acquisition of the land would get automatically extended? The
answer to the said question must be rendered in the negative.
Following the principle of interpretation that all words must be
given its full effect, we must also give full effect to the words "so
far as may be" applied to such revision.
37. The said words indicate the intention of the Legislature to
the effect that by providing revision of final development plan
from time to time and at least once in ten years, only the
procedure or preparation thereof as provided therein, is required
to be followed. Such procedural requirements must be followed
so far as it is reasonably possible. Section 21 of the Act, in our
opinion, does not and cannot mean that the substantial right
conferred upon the owner of the land or the person interested
therein shall be taken away. It is not and cannot be the intention
of the Legislature that what is given by one hand should be taken
away by the other.
38. Section 21 does not envisage that despite the fact that in
terms of sub-section (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 land-owner 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
provisions of Section 20(2) otiose and redundant.
39. Sub-section (1) of Section 20, as noticed hereinbefore,
provides for an enabling provision in terms whereof the State
become entitled to acquire the land either by agreement or
taking recourse to the provisions of the Land Acquisition Act. If
by reason of a revised plan, any other area is sought to be
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brought within the purview of the development plan, evidently in
relation thereto the State will be entitled to exercise its
jurisdiction under sub-section (1) of Section 20 but it will bear
repetition to state that the same would not confer any other or
further power upon the State to get the duration of designation
of land, which has been lapsed, extended. What is contemplated
under Section 21 is to meet the changed situation and
contingencies which might not have been contemplated while
preparing the first final development plan. The power of the
State enumerated under sub-section (1) of Section 20 does not
become ipso facto applicable in the event of issuance of a revised
plan as the said provision has been specifically mentioned therein
so that the State may use the same power in a changed
situation".
7.2 In the case of Bhikhubhai Vithalbhai Patel & Others v. State
of Gujarat and Another, reported in (2008) 4 SCC 144,
wherein the aforesaid decision of the Bhavnagar University
v. Palitana Sugar Mill Private Ltd and others (Supra) has
been considered,. And the petition was allowed and it was
observed in Paras-13 and 14 as under:
"13. The appellants filed writ petitions in the High Court of
Gujarat challenging the action re-reserving the land in the draft
revised development plan for the same purpose namely
education complex of South Gujarat University. The lis ultimately
culminated in the judgment of this Court in Bhavnagar University
(supra). This court held that :
(i) Section 21 of the Act does not and cannot mean
that substantial right conferred upon the owner of
the land or the person interested therein shall be
taken away. It is not and cannot be the intention of
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the legislature that what is given by one hand
should be taken away by the other.
(ii) It is further held that the statutory interdict of
use and enjoyment of the property must be strictly
construed. It is well settled that 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 the said Act are only creature of
statute. They must act within the four corners
thereof.
(iii) It is further held that inspite of statutory lapse
of designation of the land, the State is not denuded
of its power of eminent domain under the general
law, namely, the Land Acquisition Act in the event
an exigency arises therefore.
14. The State Government unmindful of and undaunted by
the judgment of this court proposed to modify the draft
revised development plan already submitted by the
authority in purported exercise of the power conferred by
the proviso to sub-clause (ii) of clause (a) of sub-section (1)
of Section 17 of the Act by designating the land for
educational use under Section 12(2)(o) of the Act. The
Government having considered the objections issued final
notification dated 28th September, 2004 confirming
modifications proposed in the preliminary notification".
8. Admittedly, in the present case, the land was initially
reserved for proposed D.P. road for 10 years in the first
proposed Development Plan. It is admitted fact that the
petitioner has issued legal notice dated 29.10.2012 under
Section 20(2) of the Gujarat Town Planning and Urban
Development Act, 1976. Admittedly, this Notice has not
been replied by the Authority concerned as no copy of such
reply of the said notice has been produced on record.
Section 20 of the Act reads as under:
"Section 20: Acquisition of land:
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(1) xxx xxx xxx
(2) If the land referred to in sub-section (1) is not
acquired by agreement within a period of ten
years from the date of 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".
9. Now, considering the provisions of Gujarat Town Planning
and Urban Development Act, 1976, it is clearly found that
when Notice under Section 20(2) was issued by the
petitioner to the concerned Authority, it was necessary for
the concerned Authority either to acquire the land in
question and if it is not acquired as stipulated under Section
20(2), natural and Legal consequences would be
designation of the land for development purpose would be
deemed to have been lapsed. It also reveals that even
Authority is not able to produce on record to suggest that
the stand of the petitioner that (i) no useful purpose would
be served to continue the reservation of D.P. road, (ii) NOC
has not been granted by the NCC people and (iii) the fact
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that the road is blocking due to pucca construction, is not
sustainable.
10. In view of the aforesaid facts and circumstances of the case
and the decision of the Apex Court in relation to Section
20(2) of the Act, in the present case also it is incumbent on
the part of the Authority to initiate steps for acquisition of
the land in question within the period of six months and in
failure thereof, the reservation of the land for D.P. road
would be lapsed thereof. Therefore, considering the facts
and circumstances of the case, if following order is passed it
will meet the ends of justice: -
"The respondent authority is hereby directed to
consider and decide the question of acquirement of land in
question within six months from today and if no such steps
are commenced for acquisition of land by the Authority
within the stipulate period, then after six months, the
proposed reservation of the land in question would be
deemed to have been lapsed thereafter".
With the aforesaid observation, the petition stands allowed
to the aforesaid extent. Rule is made absolute. No order as
to costs. Direct Service is permitted.
(DR. A. P. THAKER, J)
SAJ GEORGE
