LPA/1452/2005 1/97 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO.1452 OF 2005 IN SPECIAL CIVIL APPLICATION NO.12066 OF 2004 WITH LETTERS PATENT APPEAL NO.1453 OF 2005 IN SPECIAL CIVIL APPLICATION NO.12001 OF 2004 WITH CROSS OBJECTION NO.166 OF 2005 IN LETTERS PATENT APPEAL NO.1453 OF 2005 IN SPECIAL CIVIL APPLICATION NO.12001 OF 2004 WITH CIVIL APPLICATION NO.11143 OF 2005 IN LETTERS PATENT APPEAL NO.1452 OF 2005 IN SPECIAL CIVIL APPLICATION NO.12066 OF 2004 WITH CIVIL APPLICATION NO.11145 OF 2005 IN LETTERS PATENT APPEAL NO.1453 OF 2005 IN SPECIAL CIVIL APPLICATION NO.12001 OF 2004 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 To be referred to the Reporter or not? 3 Whether their Lordships wish to see the fair copy of the judgment? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder? 5 Whether it is to be circulated to the Civil Judge? LPA/1452/2005 2/97 JUDGMENT ========================================================= = STATE OF GUJARAT - Appellant Versus BHARAT CHAMPAKBHAI & ORS. - Respondents ========================================================= = Appearance: MR KAMAL B. TRIVEDI, ADVOCATE GENERAL, WITH MS SANGEETA VISHEN, ASSISTANT GOVERNMENT PLEADER for Appellant in Letters Patent Appeal Nos.1452 of 2005 and 1453 of 2005 as well as Civil Applications filed therein and in Cross Objections. MR SN SHELAT, SENIOR ADVOCATE, and MR YN OZA, SENIOR ADVOCATE, WITH MR RJ OZA, ADVOCATE, for Respondent Nos.1 to 3 in Letters Patent Appeal No.1452 of 2005 and Civil Application filed therein. MR UI VYAS, ADVOCATE, for Respondent No.4 in Letters Patent Appeal No.1452 of 2005 and Civil Application filed therein AND for Respondent No.28 in Letters Patent Appeal No.1453 of 2005 and Civil Application filed therein and Cross Objection No.166 of 2005 MR SH SANJANWALA, SENIOR ADVOCATE, WITH MR RS SANJANWALA, MR SHAMIK SANJANWALA & MR DILIP KANOJIYA, ADVOCATES, for respondent Nos.1 to 27 in Letters Patent Appeal No.1453 of 2005 and Civil Application filed therein as well as in Cross Objection No.166 of 2005. ========================================================= = CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 10-13-14-15/11/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Both these appeals are directed against common judgment dated August 11, 2005 rendered by the learned Single Judge in Special Civil Application No.12001 of 2004 and Special Civil Application No.12066 of 2004, which were filed by LPA/1452/2005 3/97 JUDGMENT the owners of the lands situated at Villages Bharthana, Althan and Umra, Taluka: Choryasi, District: Surat, challenging notification dated July 22, 2004 issued by the State Government proposing to modify the Draft Development Plan of Surat Urban Development Authority in exercise of powers conferred by the provisions of Section 17(1)(a)(ii) of the Gujarat Town Planning & Urban Development Act, 1976 ("the Act" for short) and notification dated September 28, 2004 issued under Section 17(1) (c) of the Act, by which their lands were designated for educational use under Section 12(2)(o) of the Act. As common questions of facts and law arise for consideration of the Court in the appeals and cross- objections, they are disposed of by this common judgment. 2. By filing the above-numbered appeals under Clause 15 of the Letters Patent, the State of Gujarat has challenged legality of common judgment dated August 11, 2005 rendered by the learned Single Judge in Special Civil Application No.12001 of 2004 and Special Civil Application No.12066 of 2004 by LPA/1452/2005 4/97 JUDGMENT which notification dated September 28, 2004 of the Government of Gujarat, Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar, deleting the reservation of the lands bearing Block Nos.108 to 113, 114/p, 115, 116/p, 117 to 124/p, 126/p, 127, 128, 129/p, 130/p, 131/p, 132, 133, 134/p, 147/p, 148/p, 149, 150 and 168 of Village Bharthana-Vesu and Block Nos.99/p, 108/p, 109/p, 110/p, 111, 112, 113/p, 114/p, 115/p and 127/p of Village Althan, for "Education Complex of South Gujarat University" and designating those lands for "Educational Use" under Section 12(2)(o) of the Act, is set aside on the ground that there was no material available on the File, on the basis of which, the decision could have been taken to designate the lands for 'educational use'. 3. The petitioners in Special Civil Application No.12001 of 2004 have filed above numbered Cross- Objections against the findings recorded by the learned Single Judge. Those findings are; (1) the plea that the lands of the petitioners could not have been designated for educational use LPA/1452/2005 5/97 JUDGMENT because of the decision of the High Court in Special Civil Application No.6519 of 1998 declaring that the reservation of the lands for South Gujarat University had lapsed, has no substance; (2) the contention that power under Section 12(2)(o) of the Act to designate the lands of the petitioners for educational use could not have been exercised without recording satisfaction in terms of Section 17(2) of the Act that such authority was in a position to acquire the lands whether by agreement or compulsory acquisition within ten years from the date on which final development plan came into force, is devoid of merits; (3) Section 12(2)(o) of the Act empowers the State Government to designate the use of the lands of the petitioners even after the judgment was rendered by the High Court in Special Civil Application No.6519 of 1998; (4) the plea that by designating the lands for educational use under Section 12(2)(o) of the Act, the lands have been reserved though the reservation for the University had failed, has no substance; (5) the plea that the lands of the petitioners were designated for educational use mala fide cannot be LPA/1452/2005 6/97 JUDGMENT accepted; and, (6) the contention that in view of the earlier decision of the High Court, designation of the lands could have been made only for residential, industrial, commercial, or recreational purpose, but they could not have been designated under Section 12(2)(o) of the Act for educational use, has no substance. 4. The three respondents in Letters Patent Appeal No.1452 of 2005 and the respondent Nos.1 to 27 in Letters Patent Appeal No.1453 of 2005 are the owners of the lands situated at Villages Bharthana- Vesu, Althan and Umra, Taluka: Choryasi, District: Surat, survey/block numbers of which have been mentioned earlier. The Gujarat Town Planning & Urban Development Act, 1976 came into force on February 1, 1978. Under the said Act, Surat Urban Development Authority ["SUDA" for short] is constituted. SUDA prepared a Draft Principal Development Plan whereby the lands belonging to the contesting respondents were designated for residential purpose. SUDA published the said plan in the Official Gazette on February 7, 1980 and invited objections to the same. LPA/1452/2005 7/97 JUDGMENT The objections received were considered by SUDA. After considering the objections, the draft development plan was forwarded to the State Government on August 4, 1981. The State Government desired to make modifications therein and proposed to reserve the lands of the contesting respondents for education complex of South Gujarat University. The State Government, therefore, published the draft development plan with proposed modifications in the Official Gazette on April 13, 1985 and invited objections from the landowners whose lands were proposed to be reserved for education complex of South Gujarat University. After taking into consideration the suggestions and objections received, the State Government accorded sanction to the draft development plan in the modified form on January 31, 1986 under Section 17(1)(c) of the Act whereby the lands in question were reserved for education complex of South Gujarat University. The sanction accorded under Section 17(1)(c) of the Act was notified in the Official Gazette and final development plan was brought into force with effect from March 31, 1986. Section 20 of the Act, inter LPA/1452/2005 8/97 JUDGMENT alia, provides that the Area Development Authority or any other authority for whose purpose the land is designated in the final development plan, for any purpose specified in clauses (b), (d), (f), (k), (n) or (o) of subsection 2 of Section 12 of the Act, may acquire the lands either by agreement or under the provisions of the Land Acquisition Act, 1894, and if the land is not acquired by agreement within a period of ten years from the date of coming into force of the final development plan or proceedings under the Land Acquisition Act, 1894, are not commenced within such period, the owner may serve a notice on the authority concerned requiring the authority to acquire the lands, and if within six months from the date of service of notice, the lands are not acquired or no steps are commenced for its acquisition, the designation of the lands as aforesaid shall be deemed to have lapsed. 5. The South Gujarat University did not take any step for the purpose of acquiring the lands of the respondents, either by agreement or under the provisions of the Land Acquisition Act, 1894, within LPA/1452/2005 9/97 JUDGMENT a period of ten years from the date of coming into force of the final development plan. Therefore, the contesting respondents served notice on the South Gujarat University requiring it to acquire the lands, but the South Gujarat University failed to acquire the lands or to take steps for acquisition within six months from the date of service of notice. Section 21 of the Act, inter alia, provides for revision of development plan at least once in ten years. The Development Authority undertook exercise to revise the development plan. In the revised development plan also, the lands were sought to be reserved for education complex of South Gujarat University. Therefore, the petitioners in Special Civil Application No.12001 of 2004 filed Special Civil Application No.6519 of 1988 and claimed declaration that the action on the part of the authorities to re-reserve the lands of the petitioners situated at Villages Bharthana, Althan and Umra for education complex of South Gujarat University in purported exercise of powers under Section 21 of the Act, was patently bad, illegal, arbitrary, unreasonable, unfair and violative of LPA/1452/2005 10/97 JUDGMENT Articles 14, 19 and 300-A of the Constitution. The petitioners also sought issuance of writ of mandamus restraining the respondents from acting upon the purported reservation of the lands for South Gujarat University under Section 21 of the Act and further prayed to declare that the reservation of the lands of the petitioners, in the final development plan of SUDA, for the South Gujarat University had lapsed, as no action had been taken by the authorities to acquire the lands as required by Section 20 of the Act. It may be mentioned that the landowners from Bhavnagar and Vadodara had also filed similar petitions claiming a declaration that the reservation of the lands belonging to them for educational purpose of University had lapsed entitling them to use the lands for their benefit by development and construction in accordance with other regulatory provisions of the Act, which were heard together with Special Civil Application No.6519 of 1998 filed by the petitioners, who are the petitioners in Special Civil Application No.12001 of 2004. The Division Bench of this Court by judgment dated November 24, 2000 passed following LPA/1452/2005 11/97 JUDGMENT operative order in Special Civil Application No.6519 of 1998 instituted by the petitioners : "105. Special Civil Application Nos.6461 of 1996 and 6590 of 1998 filed by the land- owners in Surat City are allowed. Their lands reserved having not been acquired within the prescribed time under Section 20(2) of the Town Planning Act, would stand dereserved, irrespective of issuance of proposed revised development plan or the final revised development plan under Section 21 of the Act. Rule in both the petitions is made absolute. No further orders need be passed in these applications." 6. It may be mentioned that Special Civil Application No.4427 of 1992 was filed by Bhavnagar University seeking a direction from the Court against the State Government and the landowners that the lands, which were subject matter of the petitions filed by the landowners, should be kept re-reserved for future need of the University. The said petition filed by Bhavnagar University was disposed of by the Division Bench in the following terms: LPA/1452/2005 12/97 JUDGMENT "102. Special Civil Application No.4427 of 1992 filed by the Bhavnagar University and Special Civil Application No.4733 of 1992 filed jointly by a Member of Senate and a student of Bhavnagar University are dismissed. Rule is discharged. Interim relief, if any, granted earlier stands vacated." 7. Feeling aggrieved, Bhavnagar University preferred an appeal before the Supreme Court. The Supreme Court dismissed the same by judgment dated December 3, 2002, rendered in Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and Ors., which is reported in (2003) 2 SCC 111. 8. Meanwhile, the SUDA prepared and published a Draft Revised Development Plan in the official gazette on February 29, 1996 and invited suggestions and objections. After considering the objections, the SUDA submitted the Draft Revised Development Plan to the State Government for sanction. The State Government was of the opinion that modifications in the plan were necessary in view of the decision of LPA/1452/2005 13/97 JUDGMENT the Supreme Court. Therefore, in exercise of powers conferred by the proviso to sub-clause (ii) of clause (a) of Section 17(1) of the Act, the State Government published the said modifications in the Government Gazette on July 22, 2004 and invited suggestions and objections to the same. The petitioners filed their objections. Apprehending that in spite of their objections, the modifications would be sanctioned by the State Government, the petitioners filed Special Civil Application No.12001 of 2004 and prayed to declare that the action on the part of the State Government of issuing notification dated July 22, 2004 under the purported exercise of powers conferred by proviso to clause (ii) of clause (a) of sub-section (1) of Section 17 of the Act is patently bad, illegal, de hors the provisions of the Act and is ultra vires. The petitioners also prayed to issue a writ of certiorari to quash notification dated July 22, 2004 and direct the State Government to treat the lands of the petitioners as having been designated in the residential zone. The petitioners further prayed to prohibit the State Government from carrying out modifications by which it was proposed LPA/1452/2005 14/97 JUDGMENT to designate their lands for educational use under Section 12(2)(o) of the Act. The petitioners also prayed to issue a writ of mandamus directing the respondents to act according to law and give effect to the judgment rendered by the High Court, which is reported in 2001 (2) G.L.H. 294 and the judgment rendered by Supreme Court, which is reported in (2003) 2 SCC 111, by designating their lands in residential zone and allow them to develop the lands for residential purpose or any other purpose as desired by them. 9. During the pendency of the petition, the State Government came out with final notification dated September 28, 2004 designating the lands in question for educational use under Section 12(2)(o) of the Act. The petitioners, therefore, moved an amendment application seeking permission of the Court to challenge the said notification. The petitioners were permitted to amend the petition and, therefore, the petitioners also challenged the validity of final notification dated September 28, 2004 issued under Section 17(1)(c) of the Act by LPA/1452/2005 15/97 JUDGMENT which their lands were designated for educational use under Section 12(2)(o) of the Act. 10. The case of the petitioners in the petition was that once the High Court and the Supreme Court had struck down the action of the Government, reserving the lands in question for the purpose of education complex of South Gujarat University, it was not open to the State Government to once again designate the lands in question for educational use. According to the petitioners, the lands reserved for residential use can also be developed for the bank, hostel, educational institutions, such as schools, colleges, etc. and, therefore, there was no need or question of designating the lands in question only for educational use. What was maintained by the petitioners was that in the similar situation, the Government released the lands, which were reserved for Bhavnagar University by designating the same for residential use and, therefore, by designating the lands of the petitioners for educational use, the petitioners were discriminated, which was violative of Article 14 of the Constitution. It was averred by the LPA/1452/2005 16/97 JUDGMENT petitioners that the lands for the use of educational purpose were/are available in abundance, not only for the present requirements, but also for future requirements and, therefore, the designation of their lands for educational use deserved to be set aside. Therefore, the respondents in Letters Patent Appeal No.1453 of 2005 filed Special Civil Application No.12001 of 2004 and claimed the reliefs, which are referred to earlier. 11. The three respondents in Letters Patent Appeal No.1452 of 2005 filed Special Civil Application No.12066 of 2004 on the grounds, which were mentioned by the petitioners in Special Civil Application No.12001 of 2004. In addition, it was also contended by them that at the behest of Mr.Surendrabhai Patel, who was treasurer of Bhartiya Janata Party, the notification dated July 22, 2004 was issued proposing to designate their lands for educational use and, therefore, the same was liable to be set aside. Therefore, the respondents in Letters Patent Appeal No.1452 of 2005 filed Special Civil Application No.12001 of 2004 filed the LPA/1452/2005 17/97 JUDGMENT petition and claimed the reliefs which are referred to earlier. 12. An affidavit-in-reply dated February 22, 2005 was filed by Mr.V.D.Vaghela, Officer on Special Duty & Ex Officio Deputy Secretary, Urban Development & Urban Housing Department, Sachivalaya, Gandhinagar, justifying the notification dated July 22, 2004 proposing to designate the lands of the petitioners for educational use under Section 12(2) (o) of the Act and mentioning, inter alia, that after taking into consideration all the relevant factors, the State Government had decided that the proposed modification was necessary in wider social interest for a long term perspective of development. It was also mentioned in the reply that the Government had taken a policy decision, which was not liable to be interfered with by the Court in exercise of powers under Article 226 of the Constitution of India. 13. The learned Single Judge formulated the following challenges in the two petitions: LPA/1452/2005 18/97 JUDGMENT (a) The first aspect of the challenge is with respect to the power of the Government to provide for designation of the land in question for educational use in face of the decision of this Court as well as the Hon'ble Supreme Court in earlier round of litigation; (b) The second limb of arguments of the petitions is that in view of the statutory provisions and, in particular, in view of the provisions contained in Section 12(2)(o), Section 17(1) and Section 20(1) read with Section 21 of the said Act, there is no possibility of designating the lands in question for educational use; (c) Another area of controversy between the parties is with respect to the contention of the petitioners that the decision of the Government suffers from legal and factual malice. That the entire area is surrounded by residential development and the proposal made by the SUDA way back in 1980's for designating the land in question for residential use and, therefore, it was not open for the Government to provide for the designation solely for the purpose of educational use without there being any material on record. 14. After hearing the learned counsels for the parties, the learned Single Judge rejected the contention urged on behalf of the petitioners that only five zones, i.e. residential, industrial, LPA/1452/2005 19/97 JUDGMENT commercial, agricultural and recreational zones, were envisaged under the Act and that no reservation or designation can be made for any other purpose. The learned Single Judge further held that when the reservation made for the purpose of South Gujarat University was struck down by this Court, which decision was confirmed by the Supreme Court, the entire issue was at large before the Government for consideration of regulating the development of the lands in terms of the provisions of the Act and it was open to the Government to consider whether the lands in question should be placed in such zone for development as found necessary in the interest of proper development of the area. According to the learned Single Judge, there was no mandate of the Court or the Legislature to provide that once the reservation had lapsed, the landowners were free to use their lands without any restriction. The learned Single Judge also held that the plea of mala fide raised in Special Civil Application No.12066 of 2004 had no substance. However, in order to examine the plea raised by the petitioners that the decision of the Government to designate the lands in question LPA/1452/2005 20/97 JUDGMENT for educational purpose was arbitrary for want of sufficient material, the learned Single Judge summoned the relevant Government Files for his perusal. Accordingly, the Files were made available by the learned counsel for the Government. A perusal of the Files by the learned Single Judge indicated that by letter dated October 22, 2003, the Chief Town Planner, Gujarat State, had recommended that educational purpose is permissible in residential zone and, therefore, the lands be continued in residential zone. It was also noticed by the learned Single Judge that a note was placed before the Minister concerned on April 23, 2004 suggesting that after releasing the lands from reservation for South Gujarat University, the same should be placed in residential zone. However, what was noted by the learned Single Judge was that thereafter the File was placed before the Minister concerned, who on July 21, 2004 directed to designate the lands for educational zone in terms of Section 12(2)(o) of the Act. Under the circumstances, the learned Single Judge was of the view that the SUDA had from the very beginning suggested that the lands be placed in LPA/1452/2005 21/97 JUDGMENT residential zone, but while taking the policy decision to designate the lands for educational use, no material was placed before the Government. The learned Single Judge further noticed that in the affidavit-in-reply of Mr.Vaghela, some justification was sought to be offered for designating the lands for educational use, but no justification was available on the Files. The learned Single Judge further noticed that even after issuing the preliminary notification dated July 22, 2004, except the suggestions and objections, there was no material on record, which could have augmented the view of the Government and, therefore, the notification dated July 22, 2004 proposing to designate the lands of the petitioners for educational purpose was liable to be quashed. In view of the above referred to conclusions, the learned Single Judge has quashed final notification dated September 28, 2004 designating the lands of the petitioners for educational use under Section 12(2)(o) of the Act by judgment dated August 11, 2005, giving rise to above numbered Letters Patent Appeals and Cross Objections. LPA/1452/2005 22/97 JUDGMENT 15. Mr.Kamal B. Trivedi, learned Advocate General for the appellant, contended that the learned Single Judge erred in quashing the notification dated September 28, 2004 designating the lands of the respondents for educational use on the ground that there was no material before the State Government, on the basis of which said decision could have been taken because what is required to be seen is the end and not the means so long as the means and the end do not smack of irrationality causing avoidable hardship to any section of the society and, therefore, the impugned judgment deserves to be set aside. It was argued that in such cases, a liberal and pragmatic approach should be adopted keeping the scale judiciously tilted in favour of the larger public interest without compromising the legal aspect. It was contended that as individual rights and interests are bound to be subordinated to the wider