)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 576 of 1999 in SPECIAL CIVIL APPLICATIONNo 9629 of 1992 with SPECIAL CIVIL APPLICATION No 10744 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to see the judgements? YES 2. To be referred to the Reporter or not? YES : 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? NO 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? NO 5. Whether it is to be circulated to the Civil Judge? : NO NO -------------------------------------------------------------- SURAT PANJRAPOLE Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 576 of 1999 MS KJ BRAHMBHATT for Appellants MR UA TRIVEDI, AGP for Respondent No. 1 MR SN SHELAT, ADVOCATE GENERAL with MR PRANAV G DESAI for Respondent No. 4 & 6 MR SUNIT S SHAH for Respondent No. 3 MR GN SHAH for Respondent No. 5 MR PRASHANT G DESAI for Respondent No. 2 2. Special Civil ApplicationNo 10744 of 1993 MR JR NANAVATI for Appellants MR PRASHANT G DESAI for Respondent No.1 MR MR SHAH for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE M.C.PATEL Date of decision: 27/03/2001 ORAL COMMON JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI) 1. Both these matters raise common questions and are argued together. The Special Civil Application No. 10744 of 1993 was referred by the learned Single Judge on 4-8-1994 to a Division Bench, and by order dated 4-11-1999, was required to be heard with the Letters Patent Appeal No. 576 of 1999. 2. The common question that arises in these two matters is, whether plots reserved for "Sub Centre" in the Town Planning Schemes can be handed over by the appropriate authority, which in the present case is the Surat Municipal Corporation, for development to other authorities for their use for setting up telephone exchange or offices of the nationalised banks and of the I.O.C., and as to whether such entrustment amounts to variation or change in the Scheme. 3. The Letters Patent Appeal No. 576 of 1999 arises from Special Civil Application No.9629 of 1992, in which the petitioner - Trust through its trustees sought a direction against the respondent - Municipal Corporation to withdraw its decision contained in the resolution No. 86 dated 9-4-1992 passed by the Standing Committee, at Annexure `B' to that petition, by which it was resolved to lease out the lands of final plot No. M/4 sub-plots Nos. P-1, P-3, P-4 and P-5 to the Banks and the Indian Oil Corporation Ltd. as mentioned therein for development on the terms and conditions determined by the Corporation in its General Meeting dated 15-12-1991, and further prayed for de-reserving the said final plot no. M/4 from the reservation made for "Sub Centre" in the Town Planning Scheme No. 9 (Majura), and to restore the same to the petitioner - Trust. 3.1 The Special Civil Application No. 10744 of 1993 has been filed by a Power of Attorney of the original owners of survey No. 489/1, 489/2/P and 489/2/C of Adajan, raising a similar challenge against the leasing out of the land of final plot No. 33 of the Town Planning Scheme No. 12 which was reserved for "Sub Centre" to the Telecommunication Department for putting up a Telephone Exchange and seeking a direction for setting aside the resolution No. 522 dated 26th May 1993, at Annexure `H' to that petition, passed by the Standing Committee of the respondent - Municipal Corporation, by which it was resolved to handover the final plot No. 33 admeasuring 6527 sq. mtrs. in the Town Planning Scheme No.12 to the Telecommunication Department on lease for development purpose. The petitioners also sought a direction on the Telecommunication Department to handover the possession of the plot back to the respondent Municipal Corporation. The Power of Attorney which is produced on the record was executed on 17th September 1993, whereby it was decided to empower its holder to take steps and to litigate for the purpose of getting the original plots including the land of the original plot No. 491/1 and other lands de-reserved. The power of attorney is described as irrevocable power of attorney and the power of attorney holder is empowered to approach the High Court and the Supreme Court for getting the lands de-reserved. 4. According to the petitioners of Special Civil Application No. 9629 of 1992, from which the Letters Patent Appeal No. 576 of 1999 arises, the petitioner Trust is a Public Charitable Trust, with its objectives to take care of stray, abandoned, weak and handicapped cattle which may be in the process of being sent to slaughter house. The Trust held about 1,76,739 sq. mtrs. of land in the municipal area of Surat. This land was covered in the Town Planning Scheme No. 9 (Majura) as per the original plot No. 5825-C. On reconstitution of the plots, the Trust got final plot No. 5825-C admeasuring 1,24,667 sq. mtrs. and according to the petitioner - Trust, it was deprived of 52,072 sq. mtrs. of land, for which compensation of Rs.3,59,193=00 was paid to the Trust after adjusting the incremental charge. Out of the said land admeasuring 52,072 sq. mtrs., which was placed under reservation (for a sub-center), final plot No. M/4 was demarcated and out of that plot, sub-plots Nos. P-1, P-3, P-4 and P-5 were carved out. The land of plot No. M/4 admeasuring 6443 sq. mtrs. included some portion of the petitioners' lands. Out of these sub-plots, land of sub-plot No. P-1 admeasuring 2250 sq. mtrs. was allotted to the State Bank of India, the land of sub-plots No. P-3 and P-4 admeasuring 2400 sq. mtrs. were allotted to the Indian Oil Corporation Ltd. and the land of sub-plot No.5 admeasuring 2387 sq. mtrs. was allotted to the Bank of India. Thus, an aggregate of these sub-plots Nos. P-1, P-3, P-4 and P-5 of 10,061.19 sq. mtrs. of land was allotted to these authorities. According to the petitioners, their basic challenge against such a course was that the land which was reserved for "Sub-center" could not have been diverted for the purpose of allotment to such institutions, and that such allotment was not for any public purpose. The grievance of the petitioner - Trust was that it was paid only a sum of Rs.3,59,193=00 for their land, while the Corporation had made a huge profit by transferring a part of such land for nearly Rs.6,87,430=00. The petitioner therefore has challenged the resolution, and seeks de-reservation of these lands for being restored to the petitioner - Trust. 4.1 The Surat Municipal Corporation contested the petition by contending in its affidavit-in-reply that the Town Planning Scheme No.9 had become a part of the Gujarat Town Planning & Urban Development Act, 1976, as provided by section 65(3) thereof after it was sanctioned on 24-2-1984, and came into force from 23-4-1984. The lands in question which were reserved for "sub-center" for public purposes had vested in the Corporation free from all encumbrances, as provided by section 67(a) of the Act, and therefore, the petitioners were not entitled to put up any claim in respect thereof. It is stated that, after the Town Planning Scheme was framed, the petitioners were re-allotted 1,24,667 sq. mtrs. of land and the remaining portion of land was put under reservation for different public purposes like road site, sub-station, site for school etc. The petitioners had taken advantage of the re-allotted plots and had also accepted the compensation worked out after adjustment. According to the respondent - Corporation, the land was being used for public purpose for which it was reserved as it was being utilized for "sub-center". The said Town Planning Scheme No. 9 (Majura) covered a total area of 110 hectors. The local authority had declared its intention to prepare a draft scheme by its resolution No. 41 dated 21-6-1965 and the draft scheme was approved by the State Government on 19-5-1971. The preliminary scheme was prepared under the said Act and sanctioned on 12-12-1980 by the State Government. The preliminary scheme came into force from 27-1-1981 and on its coming into force, all rights of the petitioners were settled and the lands which were meant for public purpose vested in the respondent No.2 - Corporation free from all encumbrances. A final scheme was sanctioned under the notification issued by the State Government on 24-2-1984. According to the Corporation, the Town Planning Officer while determining the value of the land under section 32(1)(iii) of the Bombay Town Planning Act (which corresponded to section 52(3) of the Act of 1976), had decided whether the reservation of the plot was wholly or partially beneficial to the owners or residents of the scheme and as regards plot No. M/4, it was held that it was 3/4th beneficial to the owners or residents of the scheme and 1/4th beneficial to the general public. According to the Corporation, though the expression `sub-center' is not defined, the town planner had opined that the use of land which was reserved for sub-center can be for health center, library, market, school, playground and other public purposes. It is stated in the affidavit in reply that, as per the allotment made to the respondents No. 3 to 5, it was already made clear that the land will be used as per the Town Planning Scheme and Building Bye-laws. It is stated that these respondents were public bodies and they are going to use the land for public purposes. It is pointed out that the Corporation has already handed over the possession of the land in question to the respondents No. 3 to 5 who have paid a total sum of Rs.6,05,60,155=00 to the Corporation. Since the land had vested in the Corporation, there was no scope of any de-reservation of the land. 4.2 The respondents No. 3 to 5 who have been given sub-plots on lease have filed affidavits contesting the petition. The respondent No.5 - Indian Oil Corporation Ltd. in the affidavit in reply filed on its behalf has stated that, an aggregate amount of Rs.3,60,49,330=00 is paid by the I.O.C. to the Municipal Corporation for the sub-plots in question, which admeasure 5424 sq. mtrs. The land was given under the lease deed executed on 26-11-1992 and the I.O.C. has incurred stamp charges of Rs.50,51,150=00 in respect thereof, as also the applicable registration charges. 4.3 In the affidavit in reply filed on behalf of the respondent No.4 - Bank, while contesting the petition, it is pointed out that the respondent No.4 has already made a payment of Rs.1,05,46,875=00 towards the premium for the development rights as well as lease consideration and it has been put in possession of the sub-plot No. P-1 since 21-11-1992. It is stated that the respondent No.4 is established under the State Bank of India Act, 1955, and majority of its shares are held by the Government of India. It is stated that the land in question is going to be used for public purpose. It is contended that the expression `sub-center' derives its colour from the expression `civic-center' and such centers are reserved for locating administrative offices, post offices, banks, clubs, building for recreational and cultural purpose etc. which are in the nature of public amenities provided for the residents of the area. It is also contended that the banking services, apart from being a nerve center for business, commerce and industry, are absolutely essential even for the common man, and that, in the prevailing situation in the city, it was imperative for the local authority to make available land for providing and maintaining essential services such as banking in the area. 4.4 Similar stand is taken in the affidavit in reply filed on behalf of the respondent No.6 - Bank and it is pointed out that the respondent No.6 has already made a payment of Rs.1,98,98,771=00 towards the premium for the development rights as well as lease consideration and that, it has been already put in possession of sub-plot No. P-6, which is going to be used for the purpose of sub-center for which it is reserved, because, it intends to construct a building complex for its administrative offices, training center and branch. 4.5 The respondent No.3 - Bank has also in its affidavit in reply stated that it has already paid a sum of Rs.1,39,63,950=00 towards the premium for the development rights as well as lease consideration and that, it has been put in possession of sub-plot No. P-5, in which it intends to construct a building complex for its regional office and a branch and also to provide residential accommodation for its officers working in the regional office and branches in the city. According to the respondent No.3, sub-plot No. P-5 is thus going to be used for the purpose of sub-center, for which it was reserved. 5. In Special Civil Application No. 10744 of 1993, according to the petitioners, the lands bearing survey No. 489/1, 489/2/P and 489/2/C of Adajan belonged to them. The Corporation declared its intention to make a town planning scheme for the area of Adajan by issuing a public notice on 16-8-1974 under section 22(1) of the Bombay Town Planning Act, 1954. A draft scheme was prepared for the area under sub-section (2) of section 42 of the Gujarat Town Planning & Urban Development Act, 1976 inviting objections, and after considering the objections and following the required procedure, preliminary town planning scheme No. 12 (Adajan) was made under the notification dated 20th April 1977 issued by the Government. The Government in exercise of its powers under section 65 of the Act of 1976 sanctioned the scheme by its notification dated 21st February 1987, fixing 27th March 1987 as the date for the purpose of clause 65(2)(b) of the Act. By notification dated 30th March 1990, the final scheme was sanctioned and the 1st of May 1990 was the date fixed for the purpose of section 65(2)(b) of the Act. The lands of the petitioners were covered by the said scheme. Survey No. 489/1/P became part of final plot No.33 (which included lands of others also), and survey Nos. 489/2/B, 489/2/C and 489/1/P were given final plot No.34. The final plot No.33 was reserved under the scheme for "sub-center" and in the remarks column, it was mentioned that the said sub-center was for school, health center, market etc. According to the petitioners, their power of attorney holder was informed by the Municipal corporation by its letter dated 27th August 1993 with reference to his application dated 26th August 1993 that, the town planning scheme No.12 was sanctioned by the Government and the use of "sub-center" in that regard was shown for the purpose of school, health center and market. According to the petitioners, the reservation of final plot No.33 for "sub-center" became the public purpose as if the same were enacted in the Act and became the statutory purpose in law, which could not be changed and therefore, the respondent Corporation was bound in law to use the said final plot No.33 only for the purpose of "sub-center" namely, school, health center, market etc. and that, it was not competent to change the statutory purpose of reservation under the scheme and make the land available for any other purpose. By resolution No. 522 made on 26th May 1993, the respondent - Corporation gave a lease, for 99 years, of the land admeasuring 6527 sq. mtrs. of final plot No. 33, to the Telecommunication Department, which according to the petitioners amounted to contravention of the provisions of the Act and the Rules, and violated the proprietary rights of the petitioners and contravened the provisions of Article 14, 19(1)(f) and 300-A of the Constitution. The impugned resolution is challenged on the ground that it is illegal, arbitrary and without jurisdiction and contravene the fundamental rights of the petitioners and their proprietary rights. Though in the body of the petition, the impugned resolution is challenged on the ground that it adversely affects the proprietary rights of the petitioners and violates Article 14, 19(1)(f) and 300-A of the Constitution, in the prayer clause, a direction is sought that the Telecommunication Department should handover the possession of the said plot back to the respondent - Municipal corporation. 5.1 The Municipal Corporation contesting the petition has stated in the affidavit in reply filed on its behalf that, the final plot No. 33 which was reserved for sub-center for Surat Municipal Corporation, was reconstituted not only from survey No. 489/1, but also from revenue survey Nos. 488/1 and 490. The owners of survey Nos. 489/2/B and 489/2/C were given a total area of the said survey numbers and a large part of the area of survey No. 489/1 by reconstituting the final plot No. 34. The final plot No. 33 was reserved for "sub-center" for developing the public facilities like health center, market, offices, post office, bank, telephone centers etc. According to the Corporation, there was no change in the public purpose for which the plot was reserved. It is stated that the uses which were mentioned namely, school, health center, market etc., were not exhaustive but only illustrative, and that the word `sub-center' means a center for public utility services like bus, telephones, shops, school, market, post office, police station etc. and it does not mean only health center, school and market. In the map of the town planning scheme which is attached to the affidavit in reply, it is pointed out that, the final plot No. 33 reserved for sub-center is as per the legend described a plot for public purposes. 5.2 The respondent No.2 - Telecommunication Department of the Union of India in the affidavit in reply filed on its behalf stated that, the final plot No. 33 was handed over to the respondent no.2 on 14-7-1993 and a payment of Rs.1,46,85,750=00 was made to the Municipal corporation, and a possession receipt is annexed at Annexure R/1 to the affidavit in reply. This plot was allotted for the purpose of construction of Telephone Exchange of 25,000 lines in Rander area of Surat city, which was in the interest of public at large. It is pointed out that there is a long waiting list for telephones in Rander area and therefore, it was necessary to construct a telephone exchange at the earliest. The Telecommunication Department is likely to invest an amount of Rs. 20 crores for providing cables and exchange equipment in the interest of public facility. It was necessary to have a bigger plot like 7,000 sq. mtrs. so as to enable the Telecommunication Department to instal telephone exchange having capacity of 25,000 lines. 6. In Special Civil Application No. 9629 of 1992, the learned Single Judge by his elaborate judgement rendered on 1-2-1999 held that the expression `public purposes of all kinds' in section 40(3)(e) of the Act would show that the reservation of land for public purposes was not confined to any particular purpose and that, there may be more than one purpose for which the land may be provided in the scheme. It was held that the word `sub-center' had acquired its definite meaning in the field of town planning and when it was said that a particular land was reserved for "sub-center", it would mean that there will be a center to serve the various purposes which are essentially for the public, living in that area. The learned Single Judge referred to the General Development Control Regulation, 1986, particularly its Appendix `H', which provided for zoning regulations, which showed in the tabulated form that residential zone primarily would include public assistance, institutions, banks and other types of developments, including the places of public assembly, places of public utility and services, civic buildings etc. It was held that if the land is allotted or sold to the banks by the Corporation, it cannot be said that it was beyond the scope of public purpose. It was also held that the very fact that, even the sale of the reserved land is made permissible under section 40(3)(jj) of the Act, goes to show that it was not necessary that the Municipal Corporation should put the land to any use by itself and that it cannot let or sell the land to any other body for public purposes. It was held that the services rendered by the respondents No. 3 to 6 were public utility services and were within the scope of public purposes for which the land was reserved. All the contentions raised by the petitioners were, therefore, negatived and the petition was dismissed, which decision has been challenged in the Letters Patent Appeal. 7. It has been contended before us on behalf of the appellants of Letters Patent Appeal No. 576 of 1999 and the petitioners of Special Civil Application No. 10744 of 1993 that, the land reserved for purposes mentioned in clause (e) of section 40(3) of the Act cannot be disposed of, nor can it be leased to any other authority and it was required to be used by the appropriate authority itself, which in the present case was the Municipal Corporation. It is only the land which was reserved under clause (jj) of section 40(3), that can be sold and since clause (jj) came into force in 1986 after the Town Planning Scheme was finalized, there was no question of the Municipal Corporation being empowered to sell it or give it on lease. It was also contended that particulars of public purpose were required to be mentioned while reserving the plot for a public purpose in the scheme and that the expression `sub-center' being a vague expression, there was no reservation made for any particular purpose, as was required to be done under clause (e) of section 40(3). It was contended that the use for public purpose should be indicated in view of section 40(3)(e) and 44(b) of the Act, because, otherwise there would be no proper opportunity to the public to raise objections under section 47 against any vague expression like `sub-center'. It was argued that public of the area is entitled to know for what purpose the land is reserved, the kind of purpose should be stated and the proposition that one public purpose is as good as the other is not warranted by the provisions of the Act. It was further contended that section 52(1)(i) of the Act shows that there was a dichotomy maintained between public purpose and the purposes of appropriate authority and therefore, change between public purpose and public purpose of appropriate authority will amount to a variation for which the procedure laid down under section 70 or 71 for variation, would be required to be followed. It was then contended that the plot was reserved for the appropriate authority only and therefore, it cannot be used by any other authority. The counsel further argued that vesting in the appropriate authority of the land under section 67(a) was for a purpose and the appropriate authority did not become an absolute owner so as to become entitled to deal with the property in any manner that it liked. It was also argued that the Telecom Centre, Bank or office of the I.O.C. would not be "sub-center". It was contended that the Telecommunication Department operates throughout the country and not in a sub-center. It was also contended that the respondent Municipal Corporation has profiteered by the transaction in respect of the land reserved for sub-center. The counsel for the petitioner - Trust contended further that the petitioner being a public trust can also use the land for a public purpose, and therefore, it should be restored to the Trust. 7.1 Reliance is placed by the learned counsel appearing for the original petitioners on the following decisions:- [a] The decision in The Fruit & Vegetable Merchants Union v.