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2010 DIGILAW 549 (GUJ)

Priti Corporation v. State of Gujarat

2010-11-18

RAVI R.TRIPATHI

body2010
JUDGMENT : Ravi R. Tripathi, J. The petitioner - Priti Corporation along with three others is before this Court challenging the action of the respondents of giving effect to the final development plan as modified and published on 25.04.1994 insofar as it impliedly proposes and/or sanctions and/or approves the proposed road passing through land bearing revenue survey Nos.102, 103, 104, 106 and 141 of the petitioners. The petitioners have prayed that the respondents be restrained from giving effect to the final development plan as modified and published on 25.04.1994 and they be further restrained from taking any steps in the direction to put up proposed road passing through the land bearing aforesaid revenue survey numbers of the petitioners. The petitioners have also prayed that the respondents be directed to maintain status quo, qua deletion of part of the proposed road as per notification dated 02.11.1991. The petitioners had also prayed for interim relief. 1.1 The petition was filed on 19.05.1994. The Court issued notice returnable on 23.05.1994. On 24.05.1994, the Court passed the following order:- "S.O to 16 June, 1994. Ad interim stay in terms of para 11B. It is clarified that the aforesaid stay shall not amount staying final development plan published on 25/4/94 as regards other property accepting excepting property of the petitioner through which proposed road is passed. This ad interim relief continues to 16/6/94. DS permitted." 1.2 The matter was thereafter adjourned from time to time and on 13.12.1995, the Court passed the following order:- "I have heard Mr Y N Oza, learned Advocate for the petitioner and also seen the plan showing the existing 7 roads passing through National High way towards Desa City representing different areas. It is pointed out that there are 5 connecting roads within a distance of 3.4 kms. The proposed road is in between Road No.4 & 5 and the distance of which is only 340 meters. Rule returnable on 16.1.1996. Interim relief to continue till further orders. If any construction is raised by the petitioner on the area falling within the proposed roads, it will be open for the respondent to move this Court for appropriate orders." 1.3 The petitioners moved Civil Application seeking amendment of the petition in the year 2010, which is allowed by the Court by order dated 23.09.2010. If any construction is raised by the petitioner on the area falling within the proposed roads, it will be open for the respondent to move this Court for appropriate orders." 1.3 The petitioners moved Civil Application seeking amendment of the petition in the year 2010, which is allowed by the Court by order dated 23.09.2010. By virtue of that amendment, paras-17(A), (B) and (C) are added and in the prayer clause, para-33(BB) is also added. For the ready perusal, the aforesaid paras are reproduced:- "17. (A) The petitioners submit that even otherwise under the operation of the law, reservation of the said land could not be sustained and is deemed to have been lapsed during the afflux of time since the development plan was sanctioned in the year of 1994 which is so shown continuously in reservation on some variation and thus, reservation continued from 1994 till date. It is submitted that section 20(2) of the Town Planning and Urban Development Act, 1976 if the land is not purchased by mutual agreement pursuant to acquisition, the land owner has right to give notice to the acquiring authority to start the proceeding under the Land Acquisition Act. Within six months, if no steps are taken under the operation of law the reservation is deemed to have been lifted. On 15/1/1993 petitioner had given application/notice under section 20(2) of the Act requesting the Municipality which is the acquiring authority for initiating the proceeding. Copy of the said notice is annexed hereto and marked as Annexure: G to this petition. Statutory period of six months expired on 15/7/1993 after the said notice. The Municipality had taken no steps till date. Under the circumstances, the land in question in eye of law is not under reservation and therefore, all the authorities including Government, Municipality and other respondents are required to be directed to treat the land as if there was no reservation and in the alternative to permit to petitioner for use of the land as per their wish in accordance with law." 17. (B) That the impugned notification indicating to construct and develop the roads through the land of the petitioners' namely Survey Nos.102, 103, 104, 106 and 141 had been proposed in the year 1975 and the reservation had illegality continued thereafter from 1975 onward till this date which is illegal contrary to law and also contrary to the view taken by their Lordships n the Apex Court in the Judgment reported in AIR SC 2008 page 1771 and AIR 2003 (2) page No.511. 17. (C) It is respectfully submitted that the original draft development plan issued by the respondent authority right from the year of 1975 and sought to be amended from time to time under section 17(1)(a) and 12(2)(o) was sought to be done malafide and without sanction and without formation of opinion that the modification were necessary. And therefore, the same was void and not binding to the parties. The decision of the Hon'ble Supreme Court in this regard reported in AIR 2008, SC, 1771 is applicable in support of the case of the petitioners." 2. Today when the matter is called out, learned Advocate Mr. Rathod for the Deesa Nagarpalika requested for some time as the reply to the amended petition is not filed by the Nagarpalika. 3. Learned Advocate Mr. J.R. Nanavati appearing with learned Advocate Mr. K.D. Vasavada for the petitioners submitted that contention raised by amendment is a pure question of law and as a decision of the Hon'ble the Apex Court in the matter of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. & Ors., reported in (2003) 2 SCC 111 is relied upon, the matter be taken up for consideration and if it is found necessary to have reply to the amended petition, request of the Municipality for time may be considered. 4. Learned Advocate for the petitioners invited attention of the Court to the facts of the case. He submitted that the petitioners are the owners of lands bearing revenue survey Nos.102, 103, 104, 106 and 141. 4. Learned Advocate for the petitioners invited attention of the Court to the facts of the case. He submitted that the petitioners are the owners of lands bearing revenue survey Nos.102, 103, 104, 106 and 141. That it was as back as in the year 1975 that the original development plan was sanctioned and even after lapse of 18 years, no action was taken to implement that development plan and it was only on account of extraneous consideration that in the year 1994, once again a proposed road is to be led through the land of the petitioner bearing revenue survey Nos.102, 103, 104, 106 and 141. 4.1 Learned Advocate for the petitioners invited attention of the Court to the sequence of development. He submitted that Deesa Area Development Authority invited objections in the year 1987. The petitioners filed their objections on 28.07.1988 and Deesa Nagarpalika passed resolution No.22, a copy of which is produced at Annexure-B, page No.35, wherein the Nagarpalika resolved that the road proposed from revenue survey Nos.102, 103, 104 and 106 of 100 ft width be cancelled. At this juncture, learned Advocate for the petitioners invited attention of the Court to a map showing the existing roads of Deesa Nagarpalika reaching to National Highway No.14, which are 7 in number. He also invited attention of the Court to DP road (Development Plan), which is marked in saffron colour. 4.2 Learned Advocate for the petitioners invited attention of the Court to the subsequent development in the matter, i.e. shifting of the Bus Stand to the National Highway itself and thereby rendering requirement of the proposed road to almost zero, more particularly in light of the existing roads, which according to the learned Advocate for the petitioners effectively connect Deesa Town to National Highway No.14. He invited attention of the Court to the averments made in the petition, wherein it is mentioned that it was only for extraneous consideration that even after Deesa Nagarpalika passed resolution No.22 on 18.10.1988, at the Government level, this road is again proposed in the year 1994. In this regard, he invited attention of the Court to the averments made in para-10, which reads as under:- "10. Despite the objections raised by the petitioners, the Government issued a final draft development plan under Section 17 of the Act ostensibly at the instance of a Minister vide its notification dated 25th April 1994. In this regard, he invited attention of the Court to the averments made in para-10, which reads as under:- "10. Despite the objections raised by the petitioners, the Government issued a final draft development plan under Section 17 of the Act ostensibly at the instance of a Minister vide its notification dated 25th April 1994. A copy of the impugned notification dated 25th April 1994 is annexed hereto and marked as Annexure 'E'. It is pertinent at this stage that from the letters of the Deputy Town Planner, Chief Town Planner and the Secretary of the Urban Development and Urban Housing Department, the files of the concerned development plan are very much clear that the proposal for the proposed road was deleted. However, by the interference by a Minister, at the last stage, the Government changed its decision and issued the impugned Notification dated 25th April 1994 in which all the 12 entries are required to be taken into consideration. However, entry No.6 of the notification dated 2nd November 1991 has left out undecided. In other wards, the impugned Notification dated 25th April 1994 is silent on the point of Entry No.6. This is nothing but a sheer malafides and arbitrariness on the part of the respondents of playing with the private properties of the petitioners haphazardly without any deemed consideration. The action of the respondents is illegal, de hors the provisions of law, is taken after lapse of more than 18 years and is, therefore, not tenable at law. It is further submitted that the impugned Notification dated 25th April 1994 contains modifications qua all 11 points from Entry 1 to 11 but entry No.6 of notification dated 2nd November 1991 has been deliberately left out undecided. This is nothing but mala fide action on the part of the respondents which is required to be looked into by this Hon'ble Court in its judicial approach with a view to protecting the private properties of the petitioner. This is nothing but mala fide action on the part of the respondents which is required to be looked into by this Hon'ble Court in its judicial approach with a view to protecting the private properties of the petitioner. By this silence, it is ought to be presumed that Entry No.6 in the revised development plan dated 2nd November 1991 will not operate further and the first draft development plan of the Deesa Nagarpalika regarding the proposed road through the Revenue Survey Nos.102, 103, 104, 106 and 141 of the petitioners will be operative and in that eventuality, the petitioners will be put into great irreparable loss and hardship after lapse of 18 years. The petitioners submit that in the Revenue Survey Nos.102, 103, 104, 106 and 141, there is 75% construction which was carried out a decade back at the cost of the petitioners. Therefore, now if the impugned Notification dated 25th April 1994 is permitted to be acted upon, after keeping silent over the first draft development plan which was prepared and got approved in the year 1976 for a period of more than 17 years, the petitioners will be put into a huge loss and great hardship which cannot be compensated in terms of money." (emphasis supplied) 4.3 Learned Advocate for the petitioners submitted that besides this factual scenario of the matter, what is important is the law laid down by the Hon'ble the Apex Court with regard to this very fact-situation, which came up for consideration before the Hon'ble the Apex Court in the matter of Bhavnagar University (supra). Learned Advocate for the petitioners invited attention of the Court to the relevant paras of the said decision being para Nos.29 to 39. Learned Advocate for the petitioners submitted that in threadbare analyzes of the provisions of the Town Planning Act and more particularly Sections 12, 17, 20 and 21 of the Act, the Hon'ble the Apex Court held that:- "Sections 20 and 21 of the said Act are required to be read conjunctively with Sections 12 and 17. Whereas in terms of Sections 12 and 17 of the said Act, reservation and designation have been provided, sub-section (1) of Section 20 is an enabling provision in terms whereof the State becomes entitled to acquire the land either by agreement or by taking recourse to the provisions of the Land Acquisition Act. Whereas in terms of Sections 12 and 17 of the said Act, reservation and designation have been provided, sub-section (1) of Section 20 is an enabling provision in terms whereof the State becomes entitled to acquire the land either by agreement or by taking recourse to the provisions of the Land Acquisition Act. If by reason of a revised plan, any other area is sought to be brought within the purview of the development plan, evidently n relation thereto the State will be entitled to exercise its jurisdiction under sub-section (1) of Section 20 but the same would not confer any other or further power upon the State to get the duration of designation of land, which has lapsed, extended." (emphasis supplied) 4.4. Learned Advocate for the petitioners vehemently submitted that in the present case, first draft development plan was sanctioned in the year 1975-76 and for long 17-18 years, the authorities did not do anything in the matter. He submitted that, that is why the amendment was moved, which is granted and by the amendment, it is brought on record that, '... reservation of the said land could not be sustained and is deemed to have lapsed by afflux of time since the development plan was sanctioned in the year 1994 which is continuously shown in reservation with some variation and thus, reservation continued from 1994 till date. It is submitted that section 20(2) of the Town Planning and Urban Development Act, 1976 provides that if the land is not purchased by mutual agreement pursuant to acquisition, the land owner has right to give notice to the acquiring authority ...' 4.5 Learned Advocate for the petitioners submitted that the decision of the Hon'ble the apex Court in the matter of Bhavnagar University (supra) is squarely applicable to the facts of the present case. 4.6 Learned Advocate for the petitioners submitted that the law declared earlier is reiterated by the Hon'ble the Apex Court in the matter of Bhikhubhai Vithalbhai Patel & Ors. v. State of Gujarat & Anr., reported in AIR 2008 SC 1771 , wherein the Hon'ble the Apex Court has held that:- "Section 17 indeed confers very wide powers on State Government in the matter of sanctioning of draft development plan. v. State of Gujarat & Anr., reported in AIR 2008 SC 1771 , wherein the Hon'ble the Apex Court has held that:- "Section 17 indeed confers very wide powers on State Government in the matter of sanctioning of draft development plan. S.17(1)(a)(ii) Proviso provides that in cases where the State Government is of opinion that the substantial modifications in the draft development plan are necessary, it may, instead of returning them to the authority or the authorised officer, publish the modifications so considered necessary along with the notice in the prescribed manner inviting suggestions or objections with respect to the proposed modifications. The State Government is entitled to publish the modifications provided it is of opinion that substantial modifications in the draft development plan are necessary. The expression 'is of opinion' that substantial modifications in the draft development plan are necessary is of crucial importance. Formation of opinion is a condition precedent for setting the law in motion proposing substantial modifications in the draft development plan. Opinion to be formed by the State Government cannot be on imaginary grounds, wishful thinking, however, laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material disclosing that a necessity had arisen to make substantial modifications in the draft development plan." (emphasis supplied) 4.7 Learned Advocate for the petitioners submitted that in the present case, not only the time lag is against the Government authorities but even the change of circumstances is also against the Government authorities. He submitted that when as many as 7 roads are existing, connecting Deesa Town to the National Highway and when the Bus Stand is already shifted outside the City, on the National Highway, there is no reason for insisting upon proposed road, which otherwise also cannot be insisted upon as it has lived its life and is dead on account of expiry of required period. 5. Learned Advocate Mr. Rathod for the respondent Nagrapalika submitted that so far as resolution No.13 dated 20.07.2004 is concerned, as per the information available with him and as instructed by the officer of the Nagarpalika, the same holds the field today and there is no change in the same. 6. Learned Advocate Ms. 5. Learned Advocate Mr. Rathod for the respondent Nagrapalika submitted that so far as resolution No.13 dated 20.07.2004 is concerned, as per the information available with him and as instructed by the officer of the Nagarpalika, the same holds the field today and there is no change in the same. 6. Learned Advocate Ms. Jhaveri submitted that with change of time, with increase in population and vehicles, requirement of road cannot be ruled out and therefore, it may not be held that the road is not required in the changed circumstances and that the malafides which are alleged are without any concrete details and therefore, they should not hold the Court back from passing an order of dismissal of this petition. 7. Taking into consideration the aforesaid submissions of the learned Counsel for the parties and taking into consideration the law laid down by the Hon'ble the Apex Court, the Court is of the opinion that notification dated 25.04.1994, insofar as it impliedly proposes and/or sanctions and/or approves the proposed road passing through land bearing revenue survey Nos.102, 103, 104, 106 and 141 of the petitioners, cannot be allowed to stand. Accordingly, the same is quashed and set aside to that limited extent only. The petition is allowed. Rule is made absolute. No costs. Petition allowed.