IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3927 of 2001 WITH CIVIL APPLICATION Nos.6678/01, 11803/01 and 2470 of 2002. For Approval and Signature: HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE J.N.BHATT ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PRANJIVAN HARJIVAN PARMAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: Mr.P.H.Parmar, PARTY-IN-PERSON for Petitioner MR SN SHELAT, ADVOCATE GENERAL, with Mr.A.Y.Kogje, and Ms.Shruti D. Trivedi and Mr. R.M.Chhaya for Respondent Nos.1 & 2 MR DN PATEL for Respondent No. 3. [CAV JUDGMENT] -------------------------------------------------------------- CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE J.N.BHATT Date of decision:15/10/2003 (Per : HON'BLE MR.JUSTICE J.N.BHATT) PREAMBULATORY PROFILE: The challenge in this Public Interest Litigation is referable to judicial scrutiny, determination and adjuidication of the Constitutionality of the exercise of Legislative Jurisdiction in enacting a statute for regularisation of unauthorised developments in urban develoment 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." 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 vide 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. 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: 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. 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 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 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. (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-aggrandizement. (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 by-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 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. (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 Hon'ble Apex Court in the case of Consumer Action Group v. State of Tamil Nadu, (2000) 7 SCC 425, and the Hon'ble 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. DENOUNCING VOICE FROM REJOINDER 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 Honourable judiciary as illegalityis 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 is 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. (4) That respondent No.1 State by enacting the 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 the 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 Hon'ble Supreme Court in (1) "Consumer Action Group v. State of Tamil Nadu and (2) S.P. Anand v. H.D. Deve Gowda & 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. MARATHON ARGUMENTS IN COURSE OF HEARING: 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, AUDA. 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: 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 developments 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 section 10, that notwithstanding such repeal anything done or any action under the said Ordinance shall, in so far as, it is not inconsistent with the provisions of the Act, be deemed to have been done or taken under the Impugned Act. 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 section 9 read with section 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 section 1, sub-section (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 section 2 provides statutory definitions. Clause (a) to section 2(1) defines "area development authority" and clause (b) defines "Commissioner" as per the meaning assigned to it in clause (9) of section 2 of the Bombay Provincial Municipal Corporation 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 section 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 section 21 of the Gujarat Act. Sub-section (2) of section 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. 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-section (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 section 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 section 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 (a), cause the substance thereof to be published for the information of the public, in such manner as may be prescribed. TABLES 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 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 the 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 item (i). C.In land measuring not Fifty per cent of the exceeding one hundred fees specified for use square metres. 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 meters, 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 section 4 and specified in the notice, to the satisfaction of the designated authority and on the payment of fees under sub-section (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. (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-section (2). (5) Where no notice is served upon a person under sub-section (2) within the period prescribed under that sub-section or where a notice is served upon a person under sub-section (2) but a certificate is not obtained by him under sub-section (3) within such period as may be prescribed, the notice, order or, as the case may be, decision referred to in sub-section (1) shall stand revived." It is very clear from section 4 of the Act that it prescribes and provides the circumstances in which the unauthorized development may or may not be regularized. Clause (a) of sub-section (3) of section 4 of the Impugned Act clearly provides that the designated authority may regularise any unauthorised development in respect of the following matters only: (i) Margins and setbacks, (ii) Floor space index, (iii) Covered projection, (iv) Change of use, (v) A common plot and consolidated open plot, (iv) Height of a building. Clause (b) of section 4(3) provides further that the designated authority may regularise any unauthorised development inso far as parking and sanitary facilities are concerned subject to the conditions provided in sub-clause (i) and (ii). In sub-section (1) of section 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. 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. The constitution of infrastructure development fund is prescribed and provided in section 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 section 8