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Gujarat High Court · body

2003 DIGILAW 619 (GUJ)

PRANJIVAN HARJIVAN PARMAR v. STATE

2003-10-15

BHAWANI SINGH, J.N.BHATT

body2003
J. N. BHATT, J. ( 1 ) PREAMBULATOTY Profile : the challenge in this Public Interest Litigation is referable to judicial scrutiny, determination and adjudication of the constitutionality of the exercise of legislative jurisdiction in enacting a statute for regularisation of unauthorised developments in urban development areas or development in other parts of the state and known as "the Gujarat Regularisation of Unauthorised Development act, 2001" ("impugned Act") in the backdrop of two celebrated jurisprudential doctrines, viz. : (i) judicial review, and (ii) Ultra vires concept, which manifestly and evidently bring into sharp focus in microscopic evaluation a promising and panoramic profile of the issue :-"political review of Judicial pronouncements by legislative power or judicial review of legislative jurisdiction and competence of two out of three chief organs of the State, viz. : Legislature and the Judiciary. " ( 2 ) THE petitioner claims to be a social worker and holding the office of president of Akhil Bhartiya Vishwakarma Parivar and Managing Trustee of vishwakarma Vidyapith. He is a retired Architectural practitioner since 1967, and also, claims to have rich and wide experience for period of more than two decades in facing and handling, allegedly, successfully, multi-dimensional civil and criminal litigations initiated allegedly by and against very influential and elite persons and through well-known Advocates. ( 3 ) THE petitioner has also placed reliance on. some documents and photographs and literatures pertaining to institution known as Akhil Bhartiya vishwakarma Parivar. The petitioner claims to be the President of Akhil Bhartiya vishwakarma Parivar, to which reference may be made hereinafter, if and when required in course of discussion of the merits of the petition and which may be material and relevant for the purpose. Short Petitioning Profile at the Outset : ( 4 ) THE gist and genesis of this petition, according to the claim of the petitioner is the ultra vires action in enacting the Impugned Act which was immediately preceded by "the Gujarat Regularisation of Unauthorised Development ordinance, 2001". It is, also the plea of the petitioner that it is in the National and Public interest to declare the Impugned Act, as ultra vires the Constitution, as it suffers from the vice of inequality, inequity, illegality and impropriety. ( 5 ) THE main theme of the petition, as claimed by the petitioner, is the ultra vires legislative action in enacting the Impugned Act. ( 5 ) THE main theme of the petition, as claimed by the petitioner, is the ultra vires legislative action in enacting the Impugned Act. It is assailed by the petitioner contending that the Impugned Act is against the provisions of the constitutional rights including fundamental rights. The challenge is also made against the Impugned Act on the ground that it is against the principles of equality of law, equality before law and the provisions of relevant law, rules and regulations and bye-laws of building and Town Planning Schemes. Further allegation is that the Impugned Act has encouraged disorderly development of cities destroying the rights-of natural air and light, affecting environmental problems like pollution and encouraging corrupt practice. It is, therefore, the case of the petitioner that the Impugned Act is against the National and Public interest and is liable to be nullified by declaring it, as ultra vires, the Constitution of India. Defensive Armoury of the State : ( 6 ) RESPONDENT No. 1-State has filed by its counter, one at the stage of opposing admission of the petition and second after the petition came to be admitted. Other respondents appear to have followed it. The State has, inter alia, raised the following points and aspects in defending and supporting the impugned Act :- (1) That the purpose of challenging the constitutional validity of the Gujarat regularisation of Unauthorised Development Act, 2001, can, succeed only in the backdrop of the facts of the case and the conspectus of the realist circumstantial profile which is, conspicuously, absent in the petition. Since, constitutional challenge is made against the Impugned Act, in vacuum, the petition deserves the legal fate of dismissal only on this ground alone. (2) That it is denied that the Impugned Act is against the provisions of the constitution and the fundamental rights and the provisions of relevant laws, rules, regulations and building bye-laws and aims and objects of town planning laws, development laws and town planning schemes. (3) That, it is incorrect that the Impugned Act has encouraged disorderly development affecting public health and environment, creating pollution and encouraging corruption. (4) It is controverted that the Impugned Act shall establish a bad precedent and encourage irregularity in construction. (5) That the contentions advanced in the petition are quite vague and rest in vacuum and in abstract terms without specific instances and clear facts. (4) It is controverted that the Impugned Act shall establish a bad precedent and encourage irregularity in construction. (5) That the contentions advanced in the petition are quite vague and rest in vacuum and in abstract terms without specific instances and clear facts. (6) It is denied that there will be possibility of abuse of the Impugned Act and it violates the provisions of the law. (7) That the Impugned Act does not violate the provisions of the Constitution, as well as, any other provisions of any law. (8) It is denied that it is against the principles of natural justice, real justice and fundamental rights. (9) It is questioned and controverted that the Impugned Act has given unrestricted powers in the hands of the concerned authorities. (10) That the petitioner appears to have filed the petition in pursuit of publicity and the letter addressed to the Court appears to be more of an exercise in self-aggrandisement. (11) It is contended that the respondent No. 1-State has not misused the powers granted to it under the Constitution of India as alleged. (12) It is denied that the Impugned Act is also against the prevailing building bye-laws, town planning Act, rules throwing them from progressive to destructive ways and manners and opening doors for corrupt practice as alleged. It is also pleaded that in the entire petition, the petitioner has made averments stating that the Impugned Act is against the prevailing laws and against the provisions of the Constitution of India without indicating as to why and as to which provisions are against the existing provisions of the law and the Constitution of India. Nothing has been even remotely indicated as to how the provisions of the Constitution of india have been violated by enacting the Impugned Act. (13) It is contended that the averments made in the petition with regard to the petitioner being a successful architect is unsupported and it is further contended that the petitioner appears to have retired way back in 1967, and therefore, he certainly does not appear to be an expert in the field of modern architecture and environments. (14) The averments made in the petition with regard to having faced various civil and criminal litigations are vague. In that, the petitioner has not pointed out the nature of litigation. (15) The other allegations made and the pleas raised in the petition are also denied. (14) The averments made in the petition with regard to having faced various civil and criminal litigations are vague. In that, the petitioner has not pointed out the nature of litigation. (15) The other allegations made and the pleas raised in the petition are also denied. (16) While supporting the vires of the Impugned Act, it is the contention of the respondent No. 1-State that the object of the Impugned Act is quite evident and the intervention of the Government by legislation for regularisation had become a compelling necessity in view of the facts articulated in the Statement of Objects and Reasons after consideration of the Study-Group Report. The Impugned Act and its provisions are just, valid and proper. The enactment of the Impugned Act was necessitated on account of prevailing compelling reasons and the circumstances for the Government and it does not in any way contravene or violate the provisions of the existing laws and the Constitution. (17) It is also pleaded that similar provisions in "the Tamil Nadu Town and country Planning Act, 1971" were subject-matter of challenge before the honble Apex Court in the case of Consumer Action Group v. State of tamil Nadu, 2000 (7) SCC 425 , and the Honble Apex Court has upheld the validity and legality of similar provisions, and therefore, the challenge at the instance of the petitioner in the name of public interest is not maintainable and deserves to be rejected. ( 7 ) THE petitioner has, also, filed rejoinder against the second affidavit-in- reply filed on behalf of the respondent No. 1-State, inter-alia, raising following facts and aspects :- (1) That the Impugned Act is illegal. That, now survival of law and order situation remains only in the active duties of the Honble judiciary as illegality is encouraged. (2) That the petitioner sticks to the facts and pleadings stated by him earlier and that whatever pleaded in the second affidavit-in-reply on behalf of the respondent No. 1 if not admitted by him and that he reiterates that the Impugned Act is ultra vires the Constitution. (3) That the provisions of the Impugned Act are contrary to the National and Public Interest. (3) That the provisions of the Impugned Act are contrary to the National and Public Interest. (4) That respondent No. 1-State by enacting that Impugned Act has tried to inactivate the bold steps taken by this High Court against the unauthorised, illegal and unlawful developments, and therefore, it is illegal and against the bold and independent verdicts. (5) That the Impugned Act is designed to favour a very limited interested and influential offenders and that it is at the cost of Public Interest. (6) It is reiterated that the Impugned Act is ultra vires, the constitutional provisions and it violates the fundamental rights of equality before law and equal applicability of law. (7) It also offends the provisions of Directive Principles of State Policy. (8) That much water has flown after the pronouncements of judgments of honble Supreme Court in (1) "consumer Action Group v. State of Tamil nadu and (2) 5. P. Anand v. H. D. Deve Gowda and Ors. (9) That the Impugned Act is applicable to unauthorised development carried out before 20-11-2000 only, and therefore, it offends the fundamental right of equality before law and equal applicability of law to all. (10) It also, infringes the Directive Principles of State Policy and fundamental duties provided in the Constitution of India. (11) That the Impugned Act is in contravention of the provisions of the relevant principal Acts relating to Developments which violates and nullifies the provisions thereof, and therefore, it is ultra vires. ( 8 ) THE petitioner is heard in person in-extenso for hours. Learned Advocate general has also offered his vehement submissions which are adopted by the learned Advocates appearing for the respondent No. 2-Corporation and respondent no. 3-A. U. D. A. We may also mention that on more than one occasion, we requested the petitioner either to engage the services of a lawyer or to opt for appointment of a competent senior lawyer in support of the challenge made in the petition to which he readily and strongly countered and expressed his desire to make -submissions, factual as well as legal, as party-in-person, contending that he is a very experienced person having appeared as party-in- person in number of civil and criminal litigations and he will be able to argue and make his points good, by raising all relevant aspects and legal points not only in Gujarati language but also in English. He has, therefore, argued in english. We place it on record that the petitioner, therefore, argued as party- in-person for hours together and most of time in English. The Legislative Frame, Object, Scheme of Policy of the Impugned Act : ( 9 ) THE Impugned Act has come into force, on 22nd November, 2000. The impugned Act comprises of only 10 Sections. The object of the Act is to regularise the unauthorised development in urban development area or development area in the State. It received the assent of the Governor and came to be published by notification dated, 1st September 2001, repealing "the Gujarat Regularisation of Unauthorised Development Ordinance, 2001", with a provision in Sec. 10, that notwithstanding such repeal anything done or any action taken under the said Ordinance shall, insofar as, it is not inconsistent with the provisions of the Act, be deemed to have been done or taken under the Impugned Act. 9. 1 Section 9 empowers the State Government to make rules and regulate provisions for carrying out the purposes of the Impugned Act, with a proviso that if the State Government is satisfied that circumstances exist which render it necessary to take immediate action, it may dispense with the previous publication of any rule to be made under the Impugned Act. In exercise of power conferred by Sec. 9 read with Sec. 3 of the Impugned Act, the Government of Gujarat has made Rules to regularise unauthorised developments. These Rules are called : "the Gujarat Regulation of Unauthorised Development Rules, 2001" (Rules) which came to be notified by notification dated 4th September, 2001, after inviting objections and suggestions from all persons likely to be affected thereby, within 30 days from the date of publication of draft notification in the Official Gazette. The design and desideratum manifested in the Impugned Act and mechanism provided for carrying out the purposes are evident in the legislative scheme in the Impugned Act which need highlighting with a view to appreciate the merits of challenge to the Impugned Act. By virtue of Sec. 1, sub-sec. (2), the Impugned Act was brought into operation, on 22nd November, 2000, the day on which the Ordinance came to be published and the Impugned Act has repealed the said Ordinance. The legislative frame of Sec. 2 provides statutory definitions. By virtue of Sec. 1, sub-sec. (2), the Impugned Act was brought into operation, on 22nd November, 2000, the day on which the Ordinance came to be published and the Impugned Act has repealed the said Ordinance. The legislative frame of Sec. 2 provides statutory definitions. Clause (a) to Sec. 2 (1) defines "area development authority" and clause (b) defines "commissioner" as per the meaning assigned to it in clause (9) of Sec. 2 of the Bombay Provincial Municipal Corporations Act, 1949 (the bombay Act ). Whereas, the expression "designated authority" is defined in clause (c) and in clause (d) "development" and in clause (e) "development area" have been defined and shall have the meaning assigned to them in Sec. 2 of Gujarat town Planning and Urban Development Act, 1976 (the Gujarat Act ). Clause (f) is not relevant and as per clause (g), "relevant law" means the Bombay act or the Gujarat Act or any rules or bye-laws, regulations, standing orders or orders made thereunder. Last clause (h) defines what is "urban Development authority" and it shall have the meaning assigned to it in clause (xxvii) of sec. 21 of the Gujarat Act. Sub-section (2) of Sec. 2 of the Impugned Act is very material which provides that the development shall be deemed to be unauthorised if no permission of authority competent to give such permission is obtained therefor, or having obtained such permission, the development is in contravention of the relevant law or of such permission. 9. 2 Section 3 of the Impugned Act provides for regularisation of unauthorised development. It appears to be the heart of the Impugned Act. It will be, therefore, expedient to reproduce with profit the same. Section 3 reads as under : "3. 9. 2 Section 3 of the Impugned Act provides for regularisation of unauthorised development. It appears to be the heart of the Impugned Act. It will be, therefore, expedient to reproduce with profit the same. Section 3 reads as under : "3. (1) (a) A notice issued to a person under the relevant law at any time before the 22nd November, 2000 requiring such person to remove or pull down or alter unauthorised development carried out, owned or occupied by him; or (b) any order issued or decision taken under the relevant law at any time before the 28th April, 2001, the date on which the Gujarat Regularisation of unauthorised Development Ordinance, 2001 was first published, directing removal or pulling down or alteration of unauthorised development carried out, owned or occupied by a person, shall - (i) in the case of (a) be deemed to have stood suspended with effect on and from the 22nd November, and (ii) in the case of (b) be deemed to have stood suspended with effect on and from the 28th April, 2001 unless and until such notice, order or decision stands revived under sub-sec. (5 ). (2) (A) Notwithstanding anything contained in the relevant law or in the order issued or the decision taken under the relevant law, directing removal, pulling down or alteration of unauthorised development, where in the opinion of the designated authority - (i) a person has, at any time before the 22nd November, 2000 carried out any unauthorised development in urban development area or development area, and (ii) such unauthorised development may. having regard to the provisions of sec. having regard to the provisions of sec. 4 be regulated, the designated authority may, within such period and in such manner as may be prescribed, serve on the person a notice requiring him within such period not being less than a month as may be specified therein to comply with such requisitions made under Sec. 4 and specified therein and to pay to the designated authority such fees per square metre of each category of unauthorised development as may subject to the provisos, be determined by the designated authority and specified therein : provided that the designated authority shall fix fees, subject to the maxima and the minima specified in the Table below : provided further that different rates of fees may be determined by the designated authority for different categories of unauthorised development in different areas and for different unauthorised uses. (b) It shall be lawful for the designated authority to form the opinion referred to in Clause (a) either on the basis of information available with it or an application made to it by a person who has carried out or who owns or occupies the unauthorised development. (c) The designated authority, shall, as soon as may be, after service of notice to a person under Clause (c), cause the substance thereof to be published for the information of the public, in such manner as may be prescribed. TABLE OF FEES Category of unauthorised Maximum and Minimum Development per square metre. (A) For uses other than commercial 1. Margin and set backs. Not more than Rs. 1200 and not less than Rs. 600 2. Floor Space Index Not more than Rs. 2000 and not less than Rs. 700 3. Covered projection Not more than Rs. 1100 and not less than Rs. 400 4. Change of use Not more than Rs. 1100 and not less than Rs. 400 5. Common plot and Not more than Rs. 1100 and consolidated open plot and not less than Rs. 400 6. Height of building Not more than Rs. 1200 and not less than Rs. 600 (B) For Commercial use : (i) Two times of fees specified for use mentioned in Clause (A) for ground floor and first floor. (ii) One and half times of the fees specified for use mentioned in Clause (A) for floors other than those specified in term (i ). 1200 and not less than Rs. 600 (B) For Commercial use : (i) Two times of fees specified for use mentioned in Clause (A) for ground floor and first floor. (ii) One and half times of the fees specified for use mentioned in Clause (A) for floors other than those specified in term (i ). (C) In land measuring not exceeding Fifty percent of the fees specified one hundred square metres for use mentioned in Clause (A) or as the case may be Clause (B ). explanation : For the purpose of this Table, where development of tenements or of flats or of both the tenements and flats has taken place on common land the area of which exceeds one hundred square metres, each owner or occupier of such tenements, flats or, as the case may be, both of tenements and flats. shall be deemed to have held such area of land as is derived by dividing the common land by the total number of tenements, flats or as the case may be both the tenements and flats developed on such common land. (3) (a) Subject to the provisions of Clause (b) upon the compliance of requisitions made under Sec. 4 and specified in the notice, to the satisfaction of the designated authority and on the payment of fees under sub-sec. (2) such development shall cease to be unauthorised and a certificate to that effect shall be issued to the person by the designated authority in such form as may be prescribed. (b) (i) The designated authority shall, before receiving the fees and issuing of the certificate under Clause (a), consult a Committee of experts consisting of three persons, who have knowledge of and experience in structural engineering, fire fighting and town planning respectively, constituted by the designated authority, on the question as to whether the person has while complying the requisitions complied with the fire safety measures and structural stability requirements as per the National Building Code and the Indian Standard specifications for the time-being in force and it shall be the duty of the Committee to advise the designated authority on the question so referred. (ii) The Committee shall follow such procedure for disposal of its business as may be determined by the designated authority. (ii) The Committee shall follow such procedure for disposal of its business as may be determined by the designated authority. (4) An amount deposited by a person with the Municipal Corporation of a city, the area development authority or, as the case may be, the urban area development authority against unauthorised development shall be set off against the fees to be paid by him under sub-sec. (2 ). (5) Where no notice is served upon a person under sub-sec. (2) within the period prescribed under that sub-section or where a notice is served upon a person under sub-sec. (2) but a certificate is not obtained by him under sub- sec. (3) within such period as may be prescribed, the notice, order or as the case may be, decision referred to in sub-sec. (1) shall stand revived. "9. 3 It is very clear from Sec. 4 of the Act that it prescribes and provides the circumstances in which the unauthorised development may or may not be regularised. Clause (a) of sub-sec. (3) of Sec. 4 of the Impugned Act clearly provides that the designated authority may regularise any authorised development in respect of the following matters only : (i) Margins and set backs, (ii) Floor space index, (iii) Covered projection, (iv) Change of use, (v) A common plot and consolidated open plot, (vi) Height of a building. Clause (b) of Sec. 4 (3) provides further that the designated authority may regularise any unauthorised development insofar as parking and sanitary facilities are concerned subject to the conditions provided in sub-clauses (i) and (ii ). 9. 4 In sub-sec. (1) of Sec. 5 appellate forum is created and provided for. Any person aggrieved by the notice within a period of 60 days from the date of receipt or publication of the notice may prefer an appeal to an Appellate officer who shall be a person who has held the office of District Judge for a period not less than three years and appointed in this behalf by the State government for each city or development area. With the usual and general provisions that the Appellate Officer may entertain the appeal after the expiry of the period of 60 days upon being satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. With the usual and general provisions that the Appellate Officer may entertain the appeal after the expiry of the period of 60 days upon being satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. It is interesting to mention that the Appellate Officer is entitled to monthly salary and allowances that may be determined by the State Government in consultation with the Corporation of the city or as the case may be authority of the development area for which he is appointed, out of the Municipal Funds of the Municipal Corporation of the City or the funds of the Area Development or the Urban Development authority. 9. 5 The constitution of Infrastructure Development Fund is prescribed and provided in Sec. 6, whereby, it is statutorily mandated that the fees received under the Impugned Act shall be credited to a fund which shall be called the infrastructure Development Fund and which shall be held by the designated authority in trust for the purpose of augmentation, improvement or creation of an infrastructure facility. Section 7 provides for protection of action taken under the Impugned Act whereas, in Sec. 8 it is clarified that regularisation of unauthorised development under the Impugned Act shall be without prejudice to any civil or the criminal liability to which person may be subject to under any law. As observed hereinbefore, Sec. 9 empowers the State Government to make rules, whereas, last Sec. 10 provides repeal and savings. The statutory profile and legislative regulatory mechanism to advance the aims and objects of the Impugned Act to regularise the unauthorised development in urban development or development area in the State is heralded and highlighted for proper and better understanding the challenge against the legislative action in enacting the Impugned Act by the State of Gujarat. ( 10 ) RESPONDENT No. 1-State of Gujarat, in exercise of powers conferred by Sec. 9 read with Sec. 3 of the Impugned Act has framed and made Rules called : "the Gujarat Regularisation of Unauthorised Development Rules, 2001" (Rules), to regularise the unauthorised developments and to advance the object and purpose of the Impugned Act. Rule 2 provides definitions of some of the words with further provision that words and expressions used but not defined in the Rules shall have same meaning assigned to them in the Impugned Act. 10. Rule 2 provides definitions of some of the words with further provision that words and expressions used but not defined in the Rules shall have same meaning assigned to them in the Impugned Act. 10. 1 Rule 3 provides for notice for regularisation of unauthorised development in a prescribed Form a within a period of six months from the date of commencement of the Rules for the purpose of regularisation of unauthorised development to comply with the requisition provided in Sec. 4 and specified in the notice within a period of sixty days with a discretion upon written reasons to extend such time-limit for a further period of six months by the designated authority to whom the notice is required to be addressed. Rule 3 further provides that within thirty days from the issuance of such notice, the designated authority is required to affix the notice at the prominent places where such unauthorised development is situated with a view to invite objections and suggestions thereon, and thereafter, the designated authority is required to pass appropriate order within ninety days and to pass order for collection of the requisite fees for regularisation which can be recovered upon discretion of the designated authority in monthly instalments not exceeding 12 in number. The payment of fees is required to be calculated and regulated by prescribed procedure by the designated authority against the unauthorised development. 10. 2 For the purpose of regularisation of unauthorised development in parking space and sanitary facilities, the designated authority is obliged to serve a notice in Form "b", to the persons whose cases fall under the provisions of clause (b) of sub-sec. (3) of Sec. 4 with an authority to comply with the directions within a period of six months as provided in Rule 4. In the event of the designated authority having an opinion that it is not feasible to provide for necessary parking facility in unauthorised development, he is empowered to direct the person to provide such facility at such suitable location as deemed fit in accordance with the provisions of clause (6) of sub-sec. (3) of Sec. 4, following the procedure prescribed in Rule 3 for regularisation of unauthorised development. (3) of Sec. 4, following the procedure prescribed in Rule 3 for regularisation of unauthorised development. As provided in Rule 5, a person desirous of regularisation of unauthorised development has to make an application to the designated authority in Form "c" along with Form "d" and the designated authority is required to consider and follow the procedure as prescribed in Rules 3 and 4. In Rule 6, fixity of rates of fees for regularisation has been made and the designated authority is powered to specify the rate of fees to be paid by a person making an application to different areas and for different unauthorised use in accordance with the provisions of sub-sec. (2) of Sec. 3. 10. 3 The designated authority is required to publish the rates so fixed in widely circulated newspaper in the area and display the map showing different areas for which different rates for different categories are prescribed, at the notice board of the office of the designated authority along with the schedule of rates prescribed. After following the procedure and considering the tacts of a given case, the designated authority, upon being satisfied that the requirements under the Rules are complied with by the person making an application for the regularisation of unauthorised development, along with payment of tees, as laid down in Rule 6, has authority to issue a certificate in Form "e" under his signature and seal of the office for regularisation of unauthorised development. Forms "a" to "e" are also prescribed at the end of the Rules. ( 11 ) STATE of Gujarat has made certain amendments in the Act and the Rules following amendments are made in Sees. Forms "a" to "e" are also prescribed at the end of the Rules. ( 11 ) STATE of Gujarat has made certain amendments in the Act and the Rules following amendments are made in Sees. 3, 5 and 9 of the Impugned Act pursuant to the Gujarat Regularisation of Unauthorised Development (Amendment; act, 2002, which received assent of the Governor on 6th April, 2002 :"3 (2) (aa) Where an unauthorised development in urban development area or development area has been carried out at any time before the 22nd November, 2000 and the development has been wholly destroyed by the earthquake or rendered substantially and permanently unfit for the purpose of occupation due to the earthquake in the Gujarat on 26th January, 2001 and the owner or occupier of such development intends to carry out development, at the same place and with the same built-up area as existed prior to such destruction, the designated authority may notwithstanding anything contained in the relevant law, but having regard to the provisions of Sec. 4, by an order allow him to carry out such unauthorised development subject to such terms and conditions as may be prescribed and may regularise the same in accordance with the provisions of this Act, as if such unauthorised development had been carried out before the 22nd November, 2000 : provided that the designated authority while regularising such authorised development shall not charge any fees prescribed in the Table. "in Sec. 5 (1) for sub-sec. (1), following shall be substituted, namely :-" (1) (i) Any person aggrieved by the notice served upon him or notice published under sub-sec. (2) of Sec. 3 may, within sixty days from the date of the receipt, as the case may be, the publication of the notice, or (ii) the owner or occupier aggrieved by an order made under clause (aa) of sub-sec. (2) of Sec. 3 may within sixty days from the date of the order. (2) of Sec. 3 may, within sixty days from the date of the receipt, as the case may be, the publication of the notice, or (ii) the owner or occupier aggrieved by an order made under clause (aa) of sub-sec. (2) of Sec. 3 may within sixty days from the date of the order. prefer an appeal to an Appellate Officer, who shall be a person who has held the office of District Judge for a period not less than three years and appointed in this behalf by the State Government for each City or development area : provided that the Appellate Officer may entertain the appeal after the expiry of the said period of sixty days if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time; (2) in sub-sec. (2), after the words "the notice", the words, letters brackets and figures "or as the case may be, the order made under clause (aa) of sub- sec. (2) of Sec. 3" shall be inserted. xxx xxx xxx 4. (cc) the terms and conditions subject to which unauthorised development may be allowed to carry out and regularised under Clause (aa) of sub-sec. (2) of Sec. 3. 5. (1) The Gujarat Regularisation of Unauthorised Development (Amendment) (Second) Ordinance, 2001 is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the Principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the Principal Act as amended by this Act. "amendment made in the Rules : ( 12 ) THE respondent No. 1-State of Gujarat has also made further amendments in Sees. 3 and 4 by virtue of the Gujarat Regulation of Unauthorised Development (Amendment) Aet, 2003 which received assent of the Governor on 29th March, 2003 and published on 31st March, 2003, with respect to Table of Fees and making of an application. Section 3a in the Impugned Act in relation to application of Sees. 3 and 4 in certain circumstances came to be made. Likewise, in Sec. 4, in sub-sec. Section 3a in the Impugned Act in relation to application of Sees. 3 and 4 in certain circumstances came to be made. Likewise, in Sec. 4, in sub-sec. (3), in clause (b), to sub-clause (i) after the existing proviso in the Impugned Act, following proviso was added :"provided further that in case where it is not feasible to provide the parking facilities as mentioned above, the designated authorities may charge parking creating fee, as may be decided by the designated authority and facilitate in providing the required facilities or may provide for the same on the basis of build, own, operate and transfer on behalf of the defaulters. "in the same amendment Act, further amendment is made in Sec. 9 of the Impugned Act by inserting following provisions as Sec. 9 (2) (aa) after sec. 9 (2) (a) :" (aa) the rates of fees under sub-sec. (2) of Sec 3. " ( 13 ) SINCE in this petition, challenge is against the constitutionality of the impugned Act, let there be a few relevant contours of the constitutional law. A law to be valid must conform to the constitutional parameters and norms. Unconstitutionality of a statute arises from various constitutional transgressions and violations, viz. , (i) violation of the scheme of distribution of powers between centre and States, (ii) infraction, abridgement or infringement of fundamental rights, (iii) breach of other constitutional limitations and restrictions. The judiciary in one of the principal Republic Parliamentary Secular Democratic systems, the executive, legislature and the judiciary are the chief organs of the State from which expectations of social improvement and socio-economic justice are supposed to be non-delusion. ( 14 ) NOTWITHSTANDING that, history provides eloquent testimony from the constitutional and legal administrative experience that organisation or the governance in the form of Government based on law, legislature and judiciary is always a guarantee against misuse and abuse of privileges, conflict of interest and confrontations of powers. When the base is public policy and decisions are narrowed down or motivated for extraneous consideration, there is no better system of protection and the excellence and efficiency of an independent, strong and impartial judicial system; for nothing more nearly touches the welfare and security of an average citizen than a feeling that he or she can rely on judiciary and seek justice freely and fearlessly. ( 15 ) IT is rightly said that the ignoble passions are sometimes in full blast and gross short-sightedness of policy of political operators crystallize in distortion, and distortions resulting in a quarrel with the sacrosanct Constitution, the Supreme law of the land, the legislature losing its former lustre and its significant role, confrontation between the rival interests trying to circumvent even the legal course. It is in this context, the role of judiciary in a parliamentary, democratic secular, socialist, welfare State like ours, assumes higher significance and wider ramifications. ( 16 ) THE Constitution of India represents the Supreme law of the land. All three branches or organs of the National Administration are required to function within the earmarked and defined constitutional parameters. The Legislature is the maker and creator of law. The Executive is the executor or implementor of the law and the Judiciary is the interpreter and exponent of law. The division of powers between the legislature, executive and judiciary is one of the important features of our Constitution. The constitutional mechanism with respect to three main organs of the State is, thus, very well articulated in Constitution, wherein, the legislature must make laws, the executive must enforce them and the judiciary has to interpret the laws. Thus, three branches of National governance have to perform their respective roles within the constitutional limitations and empowerments. In the event of any overstepping by the Legislature or the executive in the constitutional jurisdiction or breach of law, upon a challenge. before the judiciary or in other words in a Court of Law, is required to be judged and tested in exercise of powers of judicial review on the anvil of doctrine of ultra vires. Contours and canons of Judicial Review : ( 17 ) JUDICIAL review in the realm of public law is the heart and hub of the judicial mechanism in our Constitution. The main grounds of judicial review are illegality, irrationality and procedural impropriety. While it has been staled that the grounds of judicial review define precise definition most, if not all, are concerned with either the process by which the decision was made or the scope of the power of decision-maker. The main grounds of judicial review are illegality, irrationality and procedural impropriety. While it has been staled that the grounds of judicial review define precise definition most, if not all, are concerned with either the process by which the decision was made or the scope of the power of decision-maker. It is important to remember that initial source of power for judicial review was common law and that the overall ground of judicial review is that the repository of public power has breached the limits placed upon grant of that power. ( 18 ) THE doctrine of ultra vires is invoked in this petition raising challenge against the legislative action in enacting the Impugned Act enacted by the State of Gujarat. Ultra vires is a Latin phrase, which means, beyond power; transcending authority and is frequently employed in relation to Acts or enactments of the authority or Legislature in excess of their constitutional or statutory rights or jurisdictional sweep. Thus, ultra vires means an act performed without any legal authority to act and action beyond the scope of the powers of the decision making authority and beyond the scope of legal sanction. Interpretative function of the Constitution is performed by the Courts through direct as well as indirect judicial review. In direct judicial review, the Court declares an enactment or an executive impugned action annulled or declares void on the ground that it is incompatible and inconsistent with the Constitution, whereas, in indirect judicial review, while examining and determining the constitutionality of an enactment, the Court so interprets the statutory language as to steer clear of the alleged element of unconstitutionality. The provisions of Arts. 32 and 226 are the constitutional writ remedies in our Constitution for judicial review. The doctrine of judicial review is an important facet and element in the conscience of the judiciary. ( 19 ) BRITAIN has no written Constitution. Therefore, there is no direct judicial review. Notwithstanding that judicial review is inherent in the mechanism of judicial adjudication. Therefore, Courts in Britain do resort to indirect judicial review at times, with a view to protect the civil rights and liberties while examining the constitutional provisions restrictively. Obviously, therefore, even the delegated legislation cannot be excluded from the purview of judicial review. At times, Courts do resort to Wednesbury reasonableness. Therefore, Courts in Britain do resort to indirect judicial review at times, with a view to protect the civil rights and liberties while examining the constitutional provisions restrictively. Obviously, therefore, even the delegated legislation cannot be excluded from the purview of judicial review. At times, Courts do resort to Wednesbury reasonableness. Judicial review is a potent instrument in the hands of Judges, but the Judges must observe the limit set by the parliamentary system upon exercise of this beneficent power, more so while exercising prerogative, plenary power of jurisdiction. In English system, under the public law. the Courts evaluate the problems associated with the viers and illegality. In Britain on the question of judicial review, the House of Lords has manifestly expounded exclusivity principle in exercise of judicial review in a very well known and celebrated case of "oreilly v. Macman" (1983 ). The Courts play greater deference to other constitutional organs jurisdictional sweeps particularly in exercise of public power. 19. 1 No doubt, it is essential nature of U. K. Constitution has not changed dramatically though at least in the sense that it has not become codified. Though, there is no written statute providing structure or operation of the main institution, nor are most important statute entrenched in any way. The principal reason for this flexibility or vulnerability is that British legal system is dominated by the doctrine of parliamentary sovereignty. U. K. Parliament enjoys absolute legislative supremacy, whereas, in countries wherein there are written Constitution, supremacy of the Constitution is upheld. We are one of the countries wherein the doctrine of constitutional supremacy and sovereignty is enjoyed. 19. 2 "anisminic" (1969) effectively abolished the distinction between jurisdictional error and non-jurisdictional error of law; it was held that all error of law committed by a body exercising public powers were jurisdictional errors, and hence, judicially reviewable as no authority or body has jurisdiction to be legally wrong. ( 20 ) THE doctrine of supremacy of the Constitution and the judicial review has been, succinctly explained and expounded in many decisions. It is rightly said that it is necessary to assert in clearest terms, particularly in the context of recent history that the Constitution is Supreme Lex and permanent law of the land and there is no department or branch of the Government above or beyond it. It is rightly said that it is necessary to assert in clearest terms, particularly in the context of recent history that the Constitution is Supreme Lex and permanent law of the land and there is no department or branch of the Government above or beyond it. Every organ of the State be it, Executive or Legislature or Judiciary, derives its authority from the Constitution that it must act within the limits of its authority. No one however, highly placed and no authority howsoever lofty can claim that it shall be the sole judge of its power under the Constitution or whether its action is within the confines of such power enshrined in the constitution. .