SCA/14573/2005 1/68 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14573 of 2005 WITH SPECIAL CIVIL APPLICATION NO. 13987 OF 2005 For Approval and Signature: HONOURABLE MR.JUSTICE DN PATEL ========================================= = 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 ? ========================================= = ISHWARBHAI GANPATBHAI PATEL - Petitioner(s) Versus STATE OF GJARAT & 2 - Respondent(s) ========================================= = Appearance : MRS KETTY A MEHTA for the Petitioner in both petitions. Mr. H.D..Dave, Assistant GOVERNMENT PLEADER for Respondent no.1 in both petitions. , MR HS MUNSHAW for Respondent no.2 in both petitions. MR PRASHANT G DESAI for Respondent no.3 in both petitions. ========================================================= CORAM : HONOURABLE MR.JUSTICE DN PATEL Date : 18/01/2006 ORAL JUDGMENT SCA/14573/2005 2/68 JUDGMENT Rule. Learned advocate for the respective parties waive service of notice of Rule for the respective parties in both the petitions. At the request of the learned advocates for the concerned parties, both these petitions are taken up for their final hearing today. 2. In both the aforesaid petitions, an important issue has been raised for the adjudication by this Court to the effect that is it obligatory on the part of State Government to give, personal hearing to the petitioners while giving sanction, to revised draft development plan under clause (C) of sub-section(1) of section 17 of The Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as “the Act, 1976”) and that is it obligatory on the part of the State Government to supply copies of objections and suggestions (which are received by the Government) to the petitioner, before finalisation of revised draft development plan, under section 17(1)(c) of the Act, 1976 ? 3. Brief facts come upon surface, involved in the petitions and provisions of the Act, 1976, and the Rules SCA/14573/2005 3/68 JUDGMENT made thereunder, necessary, for adjudication, are as under: In the draft development plan sanctioned by the State, one of the lands in question was reserved for slum clearance. The said development plan was sanctioned by the State Government on 31st January, 1986. Every draft development plan required to be revised at least once in ten years as per section 21 of the Act, 1976, and therefore, the said plan requires revision in the year 1996. In the year 1996, both the lands involved in both the petitions were reserved for sewage treatment plant under section 12(2)(e) of the Act, 1976. As per section 13(1) of the Act of 1976, a notification was published inviting suggestions and objections. The petitioners filed their objections and suggestions, against reservation. Thereafter, upon considering suggestions and objections, (under section 14), the reservation was continued and the authority submitted the draft revised development plan, alongwith suggestions and objections, to the State Government as per section 16 of the Act of 1976. Thereafter, as per section 17 of the Act of 1976, the State Government considered suggestions and SCA/14573/2005 4/68 JUDGMENT objections and thought it fit as per proviso to section 17(1)(a)(ii), to publish a notification dated 17th May, 2001, whereby the State Government, instead of remanding draft development plan to Surat Urban Development Authority thought it fit to invite suggestions and objections for the proposed modification in the draft revised development plan for the Surat Urban Development Area. Thus, under the proviso to sub-section (ii) of clause (a) of sub-section (1) of section 17 of the Act of 1976, the first notification was published. In this notification, the land in question was proposed to be released from reservation and was proposed to be included in the residential zone. As per section 14 of the Act of 1976, when Area Development Authority (in the present case, it is Surat Urban Development Authority), invited suggestions and objections. The petitioners had filed their objections against imposition of reservation, but Surat Urban Development Authority thought it fit after considering those objections, not to modify the revised draft development plan or not to deserve the lands in question. Thus, Area Development Authority (SUDA), continued reservation upon lands in question for sewage treatment plant, (as per section 12(2)e) SCA/14573/2005 5/68 JUDGMENT of the Act of 1976), and, therefore, the draft revised development plan submitted, under section 16 of the Act of 1976, to the State Government, along with objections and suggestions received by Surat Urban Development Authority. These suggestions and objections include objections filed by the petitioners and therefore, the Government thought it fit under the proviso to clause (ii) of sub-clause (a) of sub-section (1) of section 17 of the Act of 1976, to invite further suggestions and objections as to proposed modification (for dereservation of the lands in question) in the revised draft development plan. It appears from the record of the case that Municipal Corporation of the city of Surat has raised objections against dereservation, by a separate resolution passed in the Board meeting, wherein several details are mentioned as to the dire need of land for sewage treatment plant and looking to the pressing need of the society and looking to the future development of the city and looking to the future population. They opposed, the proposed modification, published by the Government in the notification dated 17th May, 2001 (Annexure “D” to the memo of the petition) by filing their objections, under proviso to section 17(1)(a)(ii) of SCA/14573/2005 6/68 JUDGMENT the Act. It was pointed out by the Municipal Corporation of the city of Surat that such proposed modification as to dereservation of the land may not be finally sanctioned or approved by the State Government, meaning thereby that the proposed modification which was for lifting of reservation, (which was otherwise for construction of sewage treatment plant), was objected by Surat Municipal Corporation. After considering these suggestions and objections, as per section 17(1)(c) of the Act of 1976, the State Government, thought it fit, to sanction, the revised draft development plan, vide notification dated 2.9.2004. (Annexure “L” to the memo of the petition) without proposed modification. Thus, the Government thought it fit to drop the modification in the revised draft development plan which was initially thought or envisaged as per the proviso to clause (1) of sub-clause (a) of sub- section(1) of section 17 of the Act, 1976 vide its notification dated 17th May,2001. (Annexure “D” to the memo of the petition). This dropping of “proposed modification” has given birth to the present petitions. As per respondents, this “proposed modification” was never a conclusion of the State Government. It was to be finalised upon SCA/14573/2005 7/68 JUDGMENT receiving suggestions and objections. The Municipal Corporation of the city of Surat raised objections and insisted for reservation of the disputed land for sewage treatment and upon considering under section 17(1)(c) of the Act, all these suggestions and objections, (i.e. Which were filed by petitioners under section 14 and which were filed by Surat Municipal Corporation under proviso to section 17(1)(a)(ii) of the Act, 1976), the State Government thought it fit not to modify the revised draft development plan and published a notification dated 2nd September, 2004 (Annexure “L” to the memo of the petition), whereby the sanction has been given by the State Government to the revised draft development plan. This notification is under challenge in both these petitions, mainly on the contention that the State Government has not supplied copies of the objections and suggestions of the Municipal Corporation of the city of Surat, raised (under proviso to section 17(1)(a)(ii) of the Act of 1976), in pursuance of the notification issued by the State Government dated 17th May, 2001 and therefore, there is a breach of principles of natural justice and hence, the second notification dated 2nd September, 2004, whereby, the sanction has SCA/14573/2005 8/68 JUDGMENT been given to the revised draft development plan deserves to be quashed and set aside and also raised issue that no opportunity of personal hearing is given by the State Government before giving final sanction to the revised draft development plan. The effect upon the petitioners is that initially there was a reservation on the lands in question. Subsequently, the proposed modification was for lifting of the reservation was published and again upon considering objections and suggestions, the reservation was continued and the proposed modification was dropped by the State Government. CERTAIN PROVISIONS OF THE ACT, 1976: Sec.9 Development plan. (1) As soon as may be after the constitution of an area development authority for any development area under section 5, [or designation of a local authority as the area development authority under sub-section (1) of section 6] the area development authority shall, not later than three years after the declaration of such area as a development area or within such time as the State Government may, from time to time, extend, prepare and submit to the State Government a draft development plan for the whole or any part of the development area in accordance with the provisions of this Act. (2) If a draft development plan is not prepared and submitted to the State Government by any area development authority within the period specified in sub-section (1) or within the period extended under that sub-section, an officer appointed by the State Government in this behalf may prepare and submit to the State Government in the prescribed manner a draft development plan and recover the cost thereof SCA/14573/2005 9/68 JUDGMENT from such area development authority out of its funds. Sec.10 Copy of draft development plan to be open for public inspection. A copy of the draft development plan as prepared under section 9 in respect of any area shall be kept open for inspection by the public during office hours at the head office of the area development authority, or as the case may be, at the office of the authorized officer. Sec.12 Contents of draft development plan. (1) A draft development shall generally indicate the manner in which the use of land in the area covered by it shall be regulated and also indicate the manner in which the development therein shall be carried out. (2) In particular, it shall provide, so far as may be necessary, for all or any of the following matters, namely :- (a) proposals for designating the use of the land for residential, industrial commercial, agricultural and recreational purposes; (b) proposals for the reservation of land for public purposes, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, public assembly, museums, art galleries, religious buildings, play-grounds, stadium, open spaces, dairies and for such other purposes as may, from time to time, be specified by the State Government; (c) proposals for designation of areas for zoological gardens, green belts, natural reserves and sanctuaries; (d) transport and communications, such as roads, highways, parkways, railways, waterways, canals and airport, including their extensive and development; (e) proposals for water supply, drainage, sewage disposal, other public utility amenities and services including supply of electricity and gas; (f) reservation of land for community facilities and services; (g) proposals for designation of sites for service industries, industrial estates and any SCA/14573/2005 10/68 JUDGMENT other industrial development on an extensive scale; (h) preservation, conservation and development of areas of natural scenery and landscape; (i) preservation of features, structures and places of historical, natural, architectural or scientific interest and of educational value; (j) proposals for food control and prevention of river pollution; (k) proposals for the reservation of land for the purpose of Union, any State, local authority or any other authority or body established by or under any law for the time being in force; (l) the filling up or reclamation of low lying, swampy or unhealthy areas or levelling up of land; (m) provision for controlling and regulating the use and development of land within the development area, including imposition of conditions and restrictions in regard to the open space to be maintained for buildings, the percentage of building area for a plot, the location, number, size, height, number of storeys and character of buildings and density of built up area allowed in specified area, the use and purposes to which a building or specified areas of land may or may not be appropriated, the sub-divisions of plots, the discontinuance of objectionable uses of land in any area in any specified periods, parking spaces, loading and unloading space for any building and the sizes of projections and advertisement signs and hoarding and other matters as may be considered necessary for carrying out the objects of this Act; (n) provision for preventing or removing pollution of water or air caused by the discharge of waste or other means as a result of the use of land; (o) such other proposals for public or other purposes as may from time to time be approved by the area development authority or as may be directed by the State Government in this behalf. Sec.13 Publication of draft development plan. (1) The area development authority or, as the case may be, the authorised officer shall, as soon as may SCA/14573/2005 11/68 JUDGMENT be, after a draft development plan is prepared and submitted to the State Government under section 9, publish it in the Official Gazette and in such other manner as may be prescribed along with a notice in the prescribed manner, inviting suggestions or objections from any person with respect to the development plan within a period of two months from the date of its publication. (2) The following particulars shall be published alongwith the draft development plan, namely:- (a) a statement indicating broadly the uses to which lands in the area covered by the plan are proposed to be put and any survey carried out for the preparation of the draft development plan; (b) maps, charts and statements explaining the provisions of the draft development plan; (c) the draft regulations for enforcing the provisions of the draft development plan; (d) procedure explaining the manner in which permission for developing any land may be obtained from the area development authority or, as the case may be, the authorised officer. (e) a statement of the stage of development by which it is proposed meet any obligation imposed on the area development authority by the draft development plan; (f) an approximate estimate of the cost involved in acquisition of land reserved for public purposes. Sec.14 Suggestions or objections to draft development plan to be considered. If within the period specified in section 13 any person communicates in writing to the area development authority, or, as the case may be, to the authorised officer any suggestions or objections relating to the draft development plan, the said authority or officer shall consider such suggestions or objections and may modify such plan as it or he thinks fit. Sec.15 Modifications made after publication of draft development plan. When the modifications made by an area development authority or, as the case may be, SCA/14573/2005 12/68 JUDGMENT by the authorised officer in the draft development plan are of an extensive or of a substantial nature, the said authority or, as the case may be, the authorised officer shall publish the modifications in the Official Gazette alongwith a notice in the prescribed manner inviting suggestions or objections from any person with respect to the proposed modifications within a period of two months from the date of publication of such notice and thereupon, the provisions of section 14 shall apply in relation to such suggestions or objections. Sec.16 Submission of draft development plan to the State Government for sanction. (1) After a draft development plan is published as aforesaid and the objections or suggestions thereto, if any, are received, the area development authority or, as the case may be, the authorised officer shall, within a period of six months from the date of publication of the draft development plan under section 13, submit to the State Government for its sanction the draft development plan and the regulations with the modifications, if any, made thereto under section 14 or section 15: Provided that the State Government may, on an application by the area development authority or the authorised officer, by order in writing, extend from time to time, the said period by such further period or periods as may be specified in the order, so however, that the period or periods so extended shall not, in any case, exceed twelve months in the aggregate. (2) The particulars published under sub-section (2) of section 13, and the suggestions or objections received under section 14 or section 15, shall also be submitted to the State Government, alongwith the draft development plan. Sec.17 Power of State Government to sanction draft development plan. (1) (a) On receipt of the draft development plan under section 16, the State Government may, by notification,- SCA/14573/2005 13/68 JUDGMENT (i) sanction the draft development plan and the regulations so received within the prescribed period, for the whole of the area covered by the plan or separately for any part thereof, either without modifications, or subject to such modifications, as it may consider proper;or (ii) return the draft development plan and the regulations to the area development authority or, as the case may be, to the authorised officer, for modifying the plan and regulations in such manner as it may direct: Provided that, where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary, the State Government may, instead of returning them to the area development authority or, as the case may be, the authorised officer under this sub-clause, publish the modifications so considered necessary in the Official Gazette alongwith a notice in the prescribed manner inviting suggestions or objections from any person with respect to the proposed modifications within a period of two months from the date of publication of such notice; or (iii) refuse to accord sanction to the draft development plan and the regulations and direct the area development authority or the authorised officer to prepare a fresh development plan under the provisions of this Act. (b) Where a development plan and regulations are returned to an area development authority or, as the case may be, the authorised officer under sub-clause (ii) of clause (a), the area development authority, or, as the case may be, the authorised officer, shall carry out the modifications therein as directed by the State Government and then submit them as to modified to the State Government for sanction; and the State Government shall thereupon sanction them after satisfying itself that the modifications suggested have been duly carried out therein. (c) Where the State Government has published the modifications considered necessary in a draft development plan as required under the proviso to sub-clause (ii) of clause (a), the State Government shall, before according sanction to the draft development plan and SCA/14573/2005 14/68 JUDGMENT regulations, take into consideration the suggestions or objections that may have been received thereto, and thereafter accord sanction to the draft development plan and the regulations in such modified form as it may consider fit. (d) The sanction accorded under [clause (a), clause (b) or clause (c) shall be notified by the State Government in the Official Gazette and the draft development plan together with the regulations so sanctioned shall be called the final development plan. (e) The final development plan shall come into force on such date as the State Government may specify in the notification issued under clause (d): Provided that the date so specified shall not be earlier than one month from the date of publication of such notification. (2) Where the draft development plan submitted by an area development authority or, as the case may be, the authorised officer contains any proposals for the reservation of any land for a purpose specified in clause (b) or clause (n) [or clause (o)] of sub-section (2) of section 12 and such land does not vest in the area in the development development authority, the State Government shall not include the said reservation in the development plan, unless it is satisfied that such authority would acquire the land, whether by agreement or compulsory acquisition, within ten years from the date on which the final development plan comes into force. (3) A final development plan which has come into shall, subject to the provisions of this Act, be binding on the area authority concerned and on all other authorities situated in the area of the development plan. (4) After the final development plan comes into force, the area development authority concerned may execute any work for developing, re- developing or improving any area within the area covered by the plan in accordance with the proposals contained in the development plan. SCA/14573/2005 15/68 JUDGMENT Sec.21 Revision of development plan. At least once in ten years from the date on which a final development plan comes into force, the area development authority shall revise the development plan after carrying out, if necessary, a fresh survey and the provisions of section 9 to 20, shall, so far as may be, apply to such revision. GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT RULES, 1979. Rule 3 Manner of preparation of draft development plan and its submission to State Government by the officer appointed under section 9(2) - The authorised officer shall prepare and submit the draft development plan after carrying out the survey of the area within the jurisdiction of the area development authority. For the purpose of carrying out survey of the area and preparation of the draft development plan the authorised officer shall after giving 24 hour's notice in writing to the owner, occupier or other person interested in the land unless such owner or occupier has given consent to such entry enter upon, survey, mark out such land and do all things necessary for such purposes and then proceed to prepare development plan in the manner provided in sections 10,11 and 12. After the development plan is prepared the said Officer shall submit the same to the State Government through the Chief Town Planner alongwith the particulars referred to in sub- section (2) of section 13. Rule 6 Manner in which notice for inviting suggestions or objections to modifications in the draft development plan [and regulations] shall be published under section 15 or under the proviso to sub-clause (ii) of clause (a) of sub-section (1) of section 17. - (1) If the modifications made by an area development SCA/14573/2005 16/68 JUDGMENT authority or as the case may be by the authorised officer in the draft development plan are of an extensive or a substantial nature, the said authority or as the case may be the authorised officer shall publish the modification in the Official Gazette. These modifications shall also be published by a notice which shall, as for as may be, be in Form B in one or more Gujarati newspapers circulating in the area covered by the draft development plan. The notice shall announce that if any objections or suggestions in respect of these modifications are received from the public within two months from the date of publication of the modifications in the Official Gazette, they shall be considered by the area development authority or as the case may be by the authorised officer before finally submitting the development plan to Government for sanction. (2) On receipt of the draft development plan under section 16, if the State Government is of the opinion that substantial modifications in the draft development plan and regulations are necessary, the State Government may publish the modifications so considered necessary in the Official Gazette. The State Government shall also, publish these modifications by notice in one or more newspapers in the regional language circulating