SCA/12001/2004 1/86 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12001 of 2004 With SPECIAL CIVIL APPLICATION No. 12066 of 2004 For Approval and Signature: HON'BLE MR JUSTICE AKIL KURESHI ============================================================ 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 ? ============================================================ BHIKHUBHAI VITTHALBHAI PATEL & 26 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ============================================================ Appearance : SCA No.12001 of 2004. MR SH SANJANWALA, SR. ADVOCATE WITH MR RS SANJANWALA for the petitioners. MR KB TRIVEDI, ADDITIONAL ADVOCATE GENERAL, WITH MS.SANGITA VISHAN, AGP, for Respondent No. 1. MR UI VYAS for Respondent No(s).: 2. SCA No.12066 OF 2004 MR YATIN OZA, SR. ADDVOCATE AND MR R.J.OZA WITH MS.M.N.UKANI for the petitioners. MR KB TRIVEDI, ADDITIONAL ADVOCATE GENERAL, WITH MS.SANGITA VISHAN, AGP FOR for Respondent No. 1 & 3. SCA/12001/2004 2/86 JUDGMENT MR UI VYAS for Respondent No(s).: 2. Mr.J.R.Shah for respondent No.4. ================================================================== CORAM : HON'BLE MR JUSTICE AKIL KURESHI Date : 11/08/2005 ORAL JUDGMENT Since factual and legal controversies arising in these petitions are common, both these petitions have been heard together and are being disposed of by this common judgment. 2. In an order dated 24th February 2005, learned single Judge of this Court had recorded that the matter will be heard finally on the next date i.e. 23rd March 2005 or any other subsequent date. Accordingly, these petitions were argued before me at considerable length by the learned advocates appearing for the parties. 3. In these petitions, the petitioners who are the land owners of land situated at village Barthana-Vesu which is in the vicinity of Surat City have challenged the action of the Government designating their lands for educational use. 4. Facts in brief, which are not in dispute can be SCA/12001/2004 3/86 JUDGMENT noted at the outset. 4.1 The petitioners in these petitions are owning different parcels of lands in the above mentioned villages in the vicinity of Surat City. On 4.8.81, Surat Urban Development Authority (SUDA for short) submitted a draft development plan to the State Government under section 16 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter to be referred to as “the said Act”) wherein proposals for reservation and designation for different areas were recommended by the SUDA. It is not in dispute that with respect to the lands with which the present petitions are concerned, they were proposed to be designated for residential use. The State Government issued a preliminary notification under section 17(1)(a) of the said Act inviting objections and suggestions proposing to provide for reservations of the lands in question for “Education Complex of South Gujarat University”. On 31.1.86, the State Government published a notification under section 17(1)(c) of the said Act which was a notification for final development plan and the above reservation for Education Complex of South Gujarat University came to be indicated as part of the Final Development Plan in the SCA/12001/2004 4/86 JUDGMENT notification dated 31.1.86. Pursuant to the said notification as indicated therein, Final Development Plan for the entire area including the present lands came into operation with effect from 3rd March 1986. Since as per the provisions of section 21 of the said Act, the Final Development Plan is required to be revised at least once in ten years from the date when the final development plan comes into operation, the State Government, after undertaking an exercise of preparing a revised development plan issued a fresh notification on 29th February 1996 wherein also the lands in question were placed under reservation for Education Complex of South Gujarat University. 4.2 In the meantime, the petitioners and some other similarly situated land owners of the same area served a notice upon the authorities for acquisition of the lands in question on expiry of a period of ten years from the coming into operation of the initial final development plan. The petitioners called upon the authorities to acquire the land within a period of six months. Since no acquisition was made by the authorities and the lands in question were proposed for re-reservation for the very same purpose of Education SCA/12001/2004 5/86 JUDGMENT Complex of South Gujarat University, the present petitioners and some other similarly situated land owners approached this High Court by filing Special Civil Application No.6519 of 1998 and allied matters. This group of petitions filed by the land owners of Surat along with other petitions filed by the land- owners of Bhavnagar and Vadodara came to be heard together by a Division Bench of this Court. Along with the said group of petitions, the High Court also took up for hearing petitions filed by the rival group of petitioners who were supporting such continuation of re- reservation of the lands for the said purpose. Before the Division Bench, the petitioners contended that upon completion of a period of 10 years from the date of the final development plan having come into operation, the petitioners had a right to call upon the respondents to acquire the land in question for the stated purpose and if such acquisition by agreement was not carried out within a period of six months thereof or no steps were taken for commencement of the acquisition other wise than by agreement, the petitioners would have a right to insist that the lands in question be released from such reservation. SCA/12001/2004 6/86 JUDGMENT 4.3 The entire group of petitions came to be disposed by the Division Bench of this High Court by the judgment dated 24th November 2000 which has been reported in 2001 (2) G.L.H.294 (Palitana Sugar Mill v. State of Gujarat). In the said decision, the Division Bench of this Court was pleased to allow the petitions filed by the petitioners and was further pleased to hold that the lands of the petitioners not having been acquired within the prescribed time limit under section 20(2) of the said Act would stand de-reserved irrespective of issuance of proposed revised development plan or the final revised development plan under section 21 of the said Act. The petitions filed by the rival groups came to be rejected. 4.4 The State Authorities carried the decision of the High Court in appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court by the judgment reported in the cse of Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 was pleased to uphold the decision of the Division Bench of this Court and was pleased to reject the appeals. I will advert to these decisions at some length at a later stage. SCA/12001/2004 7/86 JUDGMENT 4.5 After the decisions of this High Court and the Hon'ble Supreme Court, the State Government undertook the exercise afresh for making proposals with respect to the lands in question in terms of the provisions of the said Act. On 22nd July 2004, a preliminary notification came to be issued by the State Government in exercise of powers under proviso to sub-clause (ii) of clause (a) of sub-section (1) of section 17 of the said Act. In the said notification, proposal was made to modify the draft revised development plan pertaining to the land in question and it was provided that for the land in question indicated in the schedule to the notification reservation for “Education Complex of South Gujarat University” shall be deleted and the land so released shall be designated for Educational Use under section 12(2)(o) of the said Act. The affected persons were called upon to submit their suggestions and objections, if any, with respect to the said proposal in writing within a period of two months from the date of publication of the notification in the official gazette. 4.6 The petitioners crying foul filed the present petitions at that stage contending that once this High Court and the Hon'ble Supreme have struck down the SCA/12001/2004 8/86 JUDGMENT action of the Government in re-reserving the lands in question for the purpose of Education Complex of South Gujarat University, it is not open for the State Government to once again designate the land in question for Educational Use. The petitioners simultaneously also submitted their objections before the Government. Detailed objections in writing were raised on behalf of the petitioners opposing the proposal of the Government indicated in the said notification dated 22nd July 2004. During the pendency of the petitions, the State Government issued a final notification dated 28th September 2004. The proposal for designating the lands in question for Educational Use under section 12(2)(o) of the said Act was given a final shape and by the notification in question, the decision of the Government was formally finalised to designate the lands in question for Educational Use. The petitioners by way of amendments permitted by the Court have challenged the subsequent notification dated 28th September 2004 issued by the State government also in these petitions. 5. Having thus noted the undisputed facts leading to these petitions, one may now advert to the pleadings on record. SCA/12001/2004 9/86 JUDGMENT 5.1 In Special Civil Application No.12001 of 2004, it is mainly contended that the lands in question have been continued under reservation from time to time since 1986 and the owners are unable to develop their lands and the lands are lying vacant since long. It is contended that after examining all aspects of the matter, a Division Bench of this Court had struck down the action of the Government in re-reserving the lands for the use of Education Complex of South Gujarat University. It is contended that the decision of the High Court having been upheld by the Hon'ble Supreme Court, the petitioners cannot be prevented from utilizing their lands freely and the action of designating the lands for Educational Use amounts to re- reserving the lands which was not permitted by this Court as well as the Hon'ble Supreme Court. It is contended that the Urban Development Authority had proposed the lands in question and the entire area surrounding the land for residential use. It is contended that it is therefore now not open for the Government to designate the lands in question as educational zone alone. It is contended that the action of the Government amounts to colourable exercise of SCA/12001/2004 10/86 JUDGMENT power and the same is per-se malafide and bad in law. 5.2 It is stated that under the General Development Control Regulations of SUDA (hereinafter to be referred to as GDCR), the land reserved for residential use can also be developed for professional offices, bank, hotel, public buildings, educational institutions such as schools, colleges, technical and vocational educational institutions, library, indoor hospital, nursing home, surgical hospital, club house, community hall, light industries, etc. It is, therefore, stated that there was no need or question of placing the lands in question only for educational use. It is further contended that under similar situation whereby the very same judgment the Division Bench was pleased to strike down the re-reservation of the lands in case of Bhavnagar University, the Government has released such lands from reservation and has designated the same for residential use. It is contended that the action of the Government in case of the present petitioners therefore amounts to hostile discrimination violative of Article 14 of the Constitution of India. It is further contended that the petitioners cannot be deprived of their legal right of developing their lands SCA/12001/2004 11/86 JUDGMENT for legitimate purpose by providing for successive reservations/designations. It is stated that now that the lands of the petitioners have already been released from reservation pursuant to the decision of the High Court as upheld by the Hon'ble Supreme Court, re- reservation of the same under purported exercise of power under section 12(2)(o) of the said Act in teeth of the said judgments is not permissible. It is also stated in the petition that the lands for the use of educational purposes is available in abundance not only for the requirements at present, but also for future requirements. It is contended that the very fact that the lands in question though reserved for the purpose of of South Gujarat University could not be acquired for a long period of time, and the acquisition ultimately had to be given up, would show that there is no further need to designate the land for educational use and the decision of the government is nothing but a colourable exercise of power. 6. In Special Civil Application No.12066 of 2004, in addition to raising similar contentions as raised in Special Civil Application No.12001 of 2004, specific allegations of malafides have been made against SCA/12001/2004 12/86 JUDGMENT respondent Nos.3 & 4 who are the Minister for Urban Development and Urban Housing Department, Government of Gujarat and Treasurer of BJP respectively. 7. The State Government has filed a detailed affidavit in reply and denied the allegations made in the petitions. In an affidavit dated 22nd February 2005, filed by one Shri V.D.Vaghela, Officer on Special Duty and Ex-Officio Deputy Secretary, Urban Development & Urban Housing Department, Government of Gujarat, it is inter alia, stated that after the decision of the Hon'ble Supreme Court, the State Government issued a notification on 22nd July 2004 under proviso to section 17(1)(a)(ii) of the said Act inviting suggestions and objections with respect to the proposal for modification of the draft revised development plan pertaining to the lands in question by removing the reservation for Education Complex of South Gujarat University and by classifying the same lands for Educational Use under section 12(2)(o) of the said Act. It is stated that what weighed with the State Government was public interest at large. It is stated that the Government thought it fit to classify the lands in question for educational use so that there is a specific pocket of SCA/12001/2004 13/86 JUDGMENT educational institutional area in the fast developing city of Surat where the population in the last decade has almost doubled. If such educational institutional pockets in the adjoining land, where there already exists the complex of South Gujarat University are not ensured in the Development Plan of the city like Surat, then in that case in future land would not be available. This would make the people to travel long distance from the city area for education. Under these circumstances, it was decided to regulate the development of the land in question in such a manner whereby the lands would remain with the owners for the development for the said purpose. It is contended that the Government has power to impose reasonable restrictions on the use of the land and its development. It is stated that the entire city cannot be governed by a single zone and different use zones have been provided. In the instant case, the zoning would protect the educational area from harmful invasions of commercial and industrial uses while promoting planned and orderly development. It is stated that while forming development plan, individual rights and interests would be subordinated to wider social interests for long term perspective of development. It is stated that only after receiving suggestions and SCA/12001/2004 14/86 JUDGMENT objections within the prescribed time limit that the proposed modification came to be finalised. It is stated that the decision to classify the area for educational use is a policy matter. It is stated that the Government after having invited suggestions and objections has issued the notification dated 28.9.04 in a fair, legal and reasonable manner. It is stated that there is no requirement for the State Government to reply to each and every suggestions or objections received. However, the Government has finalised the preliminary notification after considering the suggestions and objections of all concerned parties including the petitioners. 7.1 In reply to Special Civil Application No.12066 of 2004, similar averments have been made by the State Government. In addition to the affidavit filed by the authorities, a separate affidavit dated 17th February 2005 came to be filed by respondent No.3, the concerned Minister denying the allegations of malafides made against him. 8. On the basis of the above factual matrix and on the basis of the above noted pleadings, learned advocates SCA/12001/2004 15/86 JUDGMENT appearing for the parties have made detailed submissions before me. 8.1 Appearing for the petitioners in SCA No.12001 of 2004, learned senior counsel Shri Sanjanwala submitted that the action of the Government is malafide in nature and amounts to colourable exercise of power in face of the decisions of this Court and the Hon'ble Supreme Court in the case of Palitana Sugar Mills (supra). It is contended that once the reservation under section 12(2)(k) of the said Act has elapsed, there would be no further power available to the Government to again designate the same land for educational use under section 12(2)o) of the said Act. It is contended that though the term 'designation' is now replaced by the word 'reservation', in real effect, the lands are still not released for its normal use for residential purpose. It is contended that before issuing notification in question, the State Government was required to satisfy itself that the lands in question would be acquired by the Development Authority within a period of ten years. It is contended that the State Government has not recorded any such satisfaction and that would render the notification illegal and unlawful. SCA/12001/2004 16/86 JUDGMENT 8.2 It is further contended that there is already surplus land available with the South Gujarat University. The lands already acquired have not been put to full utilization. The additional land though reserved for acquisition for the South Gujarat University for years together, the acquisition did not materialise. All this would show that that there is no further need to designate the land for exclusive use for education. It is further contended that even if it is a policy decision of the Government to provide for such designation, there has to be material on record to justify such a decision. It is contended that all throughout, it was the opinion of the officers of the Government that in view of the decisions of the High Court and the Hon'ble Supreme Court in the case of Palitana Sugar Mills (supra), the petitioners are entitled to utilise the land in question for residential purpose. It is contended that the Government had no material to overrule this opinion and to provide for designation of the land exclusively for the purpose of education. 9. Learned Senior Advocate Shri Y.N.Oza appearing for the petitioners in Special Civil Application No.12066 of SCA/12001/2004 17/86 JUDGMENT 2004, in addition to adopting the arguments canvassed by the learned counsel Shri Sanjanwala, submitted that the decision of the Government suffers from gross illegality. He contended that the scheme of the said Act and in particular, the provisions of section 12(2) (o), section 17(2) and section 20(1) of the said Act read conjointly with the provisions of section 21 of the said Act would make it sufficiently clear that the lands in question could not have been designated for limited purpose of educational use alone. He contended that once when the High Court and the Hon'ble Supreme Court have struck down the attempt of the Government to re- reserve the land, in one form or the other, the attempt on the part of the Government is to limit the use and enjoyment of the land in the hands of the land-owners. It is contended that any restriction on the use of the land must be reasonable and must be in conformity with the provisions of the said Act as also the rights guaranteed by the Constitution of India. It was further contended that the Legislature has provided for double safeguard against any arbitrary exercise of power or misuse of power for reserving or designating the land for any purpose. It is contended that as per the provisions of section 17(2) of the said Act, before the Government can designate the land for any of the SCA/12001/2004 18/86 JUDGMENT purposes specified in section 12(2)(o) of the said Act, the Government has to come to a satisfaction that the authority concerned will be in a position to acquire the land within a period of 10 years. This is in addition to the safeguard provided in section 20(2) of the said Act which confers a right on the land owners to call upon the authorities to acquire the land within a period of six months from the date of receipt of notice. Such notice can be given after a period of 10 years of the life of reservation and if the land is not acquired or no steps are commenced for its acquisition, it is provided that the designation shall be deemed to have lapsed. It is contended that the Government must satisfy the Court about having followed the said safeguards scrupulously. It is contended that in the present case, no such satisfaction as required under sub-section (2)of section 17 has been reached by the Government. 9.1 So far as the requirement under sub-section (2) of section 20 of the said Act is concerned, it is his contention that this Court in the case of Palitana Sugar Mills (supra) has already struck down the action of the Government to re-reserve the land after completion of the period of 10 years of the first SCA/12001/2004 19/86 JUDGMENT reservation. It is his contention that section 12(2) of the said Act does not envisage a separate zone for education alone and in any case, residuary power under clause (o) of sub-section (2) of section 12 would not be available and the Government's attempt to resort to the said residuary powers, according to him, is not justified. On the aspect of reasonableness of the decision of the Government, he contends that though it is a policy decision, no policy decision can stand the test of law if it is found to be arbitrary or malicious either in law or in fact. 10. At this stage, it would be appropriate to note that though orally it was contended on behalf of the petitioners in Special Civil Application No.12001 of 2004 by learned Senior Advocate Shri Sanjanwala that once the appeals of the Government were disposed of by the Hon'ble Supreme Court in the earlier round of litigation, some of the petitioners had applied to the authorities for being granted permission to develop the land for residential use and upon completion of a period of three months, such permission should be deemed to have been granted in view of the provisions of section 29 of the said Act, I find that there are neither any averments in the petition or in the SCA/12001/2004 20/86 JUDGMENT rejoinder with supporting documents nor are any consequential prayers made in the petition. In that view of the matter, I do not find it necessary to examine the said contention in the present petition. It may also be noted, at this stage, that though allegations of personal malafides were made in the petition being Special Civil Application No.12066 of 2004, I find that there is no material to permit this Court to hold such allegations as having been proved. In any case, affidavit in reply has been filed by respondent No.3 denying the allegations of personal malafides. In fact, I find that the allegations of malafides were not even pressed in service with any degree of seriousness. This issue, therefore, is closed here. 11. On behalf of the petitioners, reliance was placed on number of decisions of this Court as well as the Hon'ble Supreme Court. The decision of the Division Bench of this Court in the case of Palitana Sugar Mills (supra) was read and re-read extensively before me.