SPECIAL CIVIL APPLICATION NO. 3638 OF 1995 WITH SPECIAL CIVIL APPLICATIONS NO.3639 & 3640 OF 1995 Date of decision: 10.4.96 For Approval and Signature The Hon'ble Mr. Justice S. K. KESHOTE 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? Coram: S.K. KESHOTE,J (10.4.96) Mr. M.C. Bhatt for the petitioners Mr. S.B. Vakil for respondent No.1 Ms. K.T. Mehta for respondent No.2 Mr. D.A. Bambania for respondent No.3 Mr. G.N. Desai for respondent No.4 in all the petitions. C.A.V. JUDGMENT: In all these three petitions the facts are identical and the grounds of challenge are also similar. The respondents are common in all the three petitions. With the consent of the parties, these matters are, therefore, being disposed of by this common judgment. 1. Arguments have been advanced by the counsel for the parties with reference to special civil application No.3638 of 1995. The petitioners in special civil application No.3638 of 1995 are the owners and occupiers of land bearing survey Nos. 144-1 and 144-2 situated in the sim of Manjalpur of District and Sub District Vadodara. The lands of the petitioners are covered by the geographical limits and jurisdiction of Vadodara Urban Development Authority ('VUDA'). 2. The Gujarat Town Planning and Urban Development Act, 1976 ('T.P. Act' for short) is enacted in exercise of the legislative powers vested in the Gujarat State Legislature with the object of consolidating and amending the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat. Respondent No.1 - Vadodara Urban Development Authority - is constituted under the provisions of the T.P.Act. Respondent No.2 - Gujarat Housing Board - is also a statutory Board constituted under the provisions of the Gujarat Housing Board Act. 3. It is not in dispute that the development plan was prepared by VUDA in the year 1983 and the said development plan was sanctioned by the Government of Gujarat vide notification No.GH/P/278 of 83 / DVP.1280-4384 (83)L dated 22-12-1983 which was published in extraordinary Gazette at page No.268 part N.B. dated 23-12-1984. The said development plan came into operation from 24th January, 1984. The lands of the petitioners are reserved in the sanctioned development plan for Gujarat Housing Board. It is not in dispute that the lands of the petitioners could have been reserved for Housing Board under the development plan prepared by VUDA under section 12(2)(k) of the T.P.Act. 4. After the plan was sanctioned, the petitioners made representation to the Gujarat Housing Board from time to time for release of their lands from reservation in the plan. The Housing Board, vide its Resolution No.461/89 dated 30-12-1989 resolved to release the land of the petitioners from reservation. The petitioners produced a copy of letter dated 10-1-1990 which has been addressed by the Housing Commissioner, Gujarat Housing Board, Ahmedabad to the Chief Executive Officer, VUDA, at page 21 of the paper book. The said letter reveals that on 7-7-1983 proposal was sent to the District Collector, Vadodara, by the Gujarat Housing Board to acquire the lands of the petitioners. It also appears from the said letter dated 10-1-1990 by resolution No.461 of 1989 passed on 10-12-1989 the Board had resolved to release the lands from reservation. Though there is reference in the writ petition to the letter dated 7-9-1992 which has been sent to the Gujarat Housing Board at Ahmedabad, neither of the parties produced a copy of the same. 5. VUDA had prepared draft revised development plan in respect of the lands included within the Vadodara Urban Development Area under the provisions of T.P.Act. Notice regarding publication of the draft revised development plan under section 13 of the T.P.Act and inviting objections and suggestions on the proposed draft development plan was published in the extraordinary Gazette dated 11-11-1983. The petitioners filed their objections against the draft revised development plan vide annexure-D dated 23-12-1993. It is necessary to mention here that in the draft revised development plan prepared by VUDA the lands of the petitioners have been reserved for Housing Board under section 12(2)(k) of the T.P.Act. The petitioners, in the objections, prayed that in view of the fact that the Housing Board had resolved to dereserve the lands of the petitioners, the same may be deleted from the draft revised development plan. In exercise of the powers conferred by the provisions of section 17 of the T.P.Act, the State Government of Gujarat issued notification dated 9-3-1995 under subclause (ii) of clause (a) of subsection (1) thereof proposing modification in the draft revised development plan of Vadodara Urban Development Area excluding the lands included in special civil application No.13613 of 1994 and special civil application No.13696 of 1994 filed in this High Court. Copy of the said notification is produced at annexure-F to the petition. The said notification was issued for modification in the proposed draft revised development plan to the extent it related to the lands which were subject matter of the aforesaid special civil applications. 6. The Gujarat Housing Board by its resolution No.39 of 1995 passed in the meeting held on 17-6-1995 reconsidered its earlier resolution No.465 of 1993 dated 14-12-1993 and resolved not to dereserve the lands which are the subject matter of the present writ petition, and further resolved to withdraw the proposal sent to the Government seeking permission to dereserve the lands in question. In pursuance of the aforesaid letter dated 17-6-1995 of the Gujarat Housing Board, the Urban Development and Housing Department, Government of Gujarat, vide their letter dated 28-6-1995, cancelled the Resolution No.465 of 1993 passed by the Board. 7. After filing of these writ petitions the petitioners moved application for amendment of the writ petitions. The amendment application has been allowed by this Court on 17-1-1996. By the said amendment the petitioners incorporated prayer AA in para 14 of the petition. In the petition the petitioners made prayer that the notification annexure-F dated 9-3-1995 be set aside. Prayer for declaration that the disputed lands ceased to be reserved lands for Gujarat Housing Board since 3-12-1989 is also made. Prayer for a writ of prohibition restraining respondents No.1 and 3 from including the said lands for reservation of Gujarat Housing Board in the development plan that might be finally sanctioned under section 17 of the T.P.Act has also been made. It has been further prayed that the Vadodara Municipal Corporation be directed to accept the development plan that may be submitted by the petitioners to put up housing project on the lands in dispute. By way of amendment of the writ petition prayer has been made that the resolution of the Gujarat Housing Board bearing No.39 of 1995 dated 17-6-1995 be declared as violative of Article 14 of the Constitution of India and the same be quashed and set aside. 8. The Gujar.J writ petition. The petitioners filed rejoinder to the reply of the Housing Board. The Housing Board filed further affidavit-in -rejoinder. On behalf of the other respondents no reply has been filed, but oral submissions have been made. 9. Learned counsel for the petitioners raised the following contentions in support of the petitions: (1) Once the Gujarat Housing Board passed resolution to dereserve the lands in dispute, those lands ceased to be reserved in the development plan. (2) Before 21-1-1994 the day on which ten years' period of the sanctioned development plan expired the Board decided to dereserve the lands and as such the petitioners need not exercise the right under section 20(2) of the T.P.Act and the lands, after expiry of six months' period from the .R resolution of the Gujarat Housing Board, either 30th September,1989 or 14th September, 1993 ceased to be reserved. (3) The resolution No.39 of 1995 of the Housing Board is the result of non-application of mind, wrong interpretation of the legal position, and without any justification. It has further been contended that in facts of the case where the authority for which the land was reserved in the development plan under section 12(1)(k) has itelf resolved to release the same before the expiry of the period of ten years, no notice is required to be given by the petitioners under section 20(2) ofthe T.P.Act or it is a case where notice on behalf of the petitioners stand waived by the respondents. 10. Ms. K.A. Mehta, learned counsel for the Gujarat Housing Board raised two preliminary objections regarding maintainability of the writ petitions. Firstly it is contended that the writ petitions are premature as the draft revised development plan has not been sanctioned by the Government so far under section 17 of the T.P.Act. It has next been contended that the petitioners have not challenged before this Court the draft revised development plan in which the lands are reserved under section 12(1)(k) of the T.P.Act for the Gujarat Housing Board. Notification dated 9-3-1995 is the notification for modification of the draft revised plan and that in respect of the lands which were subject matter of special civil applications reference to which has been made therein it is neither draft revised plan nor sanctioned plan. Special civil applications to which reference has been made in the notification dated 9-3-1995 have already been withdrawn by the petitioners therein. Copy of the order which has been passed by this Court in those writ petitions has been produced. The petitioners therein had withdrawn the said petitions with liberty to file further objections to the revised draft development plan to the State Government by 10-7-1995 and thereupon the State government was to decide all the objections . The writ petitions were withdrawn. In view of the withdrawal of those writ petitions, the notification dated 9-3-1995 has come to an end or lapsed. It has further been contended that the objections which were filed by the petitioners against the draft revised plan are awaiting decision of the Government under section 17 of the T.P. Act. The petitioners have the right of alternative remedy to approach the State Government in the matter. On merits, learned counsel for the Housing Board contended that the petitioners have not given notice under section 20(2) of the T.P.Act. It is a statutory notice which has to be given by the petitioner and by not giving that notice they have not availed of the right conferred to them under the statute. It has next been contended that the reservation of lands under section 12(1) (k) has to be made under the provisions of the T.P.Act, and merely on passing of resolution by the Gujarat Housing Board to dereserve those lands the same shall not be deemed to be dereserved automatically from the draft development plan or the sanctioned development plan. The State Government is the only competent authority to dereserve the lands from the sanctioned plan. By making reference to section 19 of the T.P.Act, the learned counsel for the Housing Board contended that the modification of the sanctioned plan can be made by the Government. It has next been contended that if the petitioners' stand is accepted, then it is easy for the authority for whose benefits the lands are being reserved under section 12 to dereserve the lands. No such power has been given to the authorities to dereserve the lands. That right exclusively vests in the State government and at the most dereservation can be on the request of the authority or suo moto, but by the State Government only and not by the authority for whose benefit the lands were reserved. Further it has been contended that the resolution which has been passed by the Housing Board regarding dereservation of the lands has already been reconsidered and cancelled. The decision to dereserve the land taken by the Housing Board was not final, but it needs the approval of the State Government which admittedly was not given. Ms. Mehta has taken the Court through the relevant provisions of the Gujarat Housing Board Act,1961 and contended that those resolutions were not approved by the State Government and as such have no legal sanctity. Referring to the letter of the Government dated 7-9-1992 Ms. Mehta contended that the State Government has declined the proposal of the Gujarat Housing Boad of releasing the lands in question from reservation. The State Government has given a note of caution also that without the prior permission of the State Government no proceedings should be taken and no proposal should be sent to VUDA in the matter. 11. The recommendation which has been made by the Gujarat Housing Board for dereservation of the lands in question at annexure-B dated 10-1-1990 has not been accepted at any point of time. Lastly learned counsel for the Gujarat Housing Board contended that the Housing Board has already taken decision to keep the lands reserved in the town planning scheme. So far as the challenge to the resolution of the Board dated 17-6-1995 is concerned, Ms. Mehta contended that the petitioners are not aggrieved persons. It is the internal matter of Board and the petitioners have no right to challenge the same. The Board felt it necessary to have housing schemes since the year 1976 and at the instance of the Board the lands were acquired by the State Govgernment under the provisions of the Land Acquisition Act. After the acquisition was declared to be illegal by this Court, under the urban development plan of the City of Vadodara those lands were reserved for the Housing Board. In 1983 the Housing Board had requested the Collector concerned for acquisition of these lands. At one point of time even if some decision is taken to derelease these lands by the Housing Board, it is open to the Board to reconsider the matter and decide to continue the reservation of the lands. These are matters within the powers of the Housing Board and the petitioners have no locus standi to challenge the same. Earlier reservation has already been reconsidered and cancelled, and as such no writ of mandamus can be issued to the respondents not to sanction the revised plan under section 17 to the extent it relates to these lands, and no declaration is required to be made that the land reserved stood dereserved. 12. Mr. S.B. Vakil, learned counsel appearing for the Vadodara Urban Development Authority has adopted the arguments made by Ms. K. A. Mehta. In addition to those arguments Mr. Vakil contended that the sanctioned development plan can be modified only by the State Government by resorting to the provisions of sections 19 and 21 and not by any authority for which the land has been reserved. The learned counsel for the State Government has supported the contention raised by Ms. Mehta. He stated that the matter is at the stage of sanction of the draft revised development plan. The objections submitted by the petitioners against the draft revised plan to the development authority had been sent to the State Government and before according sanction the revised draft development plan it will consider all the material. The learned counsel for the State Government further submitted that the petitioners may submit further objections, if any, and the State Government will consider the same before sanctioning the revised draft development plan. It has further been contended that many of the writ petitions filed before this Court have been withdrawn by the petitioners on the concession given by the State Government that the objections submitted against this very revised draft development plan will be considered. The petitioners in the writ petitions, reference to which has been made in annexure-F, have also withdrawn their writ petitions for filing objections before the State Government. The present petitioners can also file objections and if the petitioners file objections the State Government will consider the same. The learned counsel for the Municipal Corporation of Vadodara contended that when the lands in question are reserved for the Housing Board, no permission can be granted to the petitioners for development of the land by them by according sanction to the building plans. 13. In the rejoinder, Mr. M. C. Bhatt, learned counsel for the petitioners contended that there is no provision under section 17 for hearing of objections by the State Government. He contended that the writ petition is not premature because the petitioners are seeking declaration that the lands stand dereserved on passing of resolution by the Housing Board in respect thereof. When the right of filing objection is not provided by section 17 of the T.P. Act it cannot be said that the petitioners have any alternate remedy. On merits, he reiterated in the rejoinder the opening submissions which he made. 14. I have considered the submissions made by the learned counsel for the parties. All the contentions raised by the learned counsel for the petitioners need not be considered as I will presently show I am satisfied that the writ petitions are filed at a premature stage. 15. The draft revised development plan was published under section 13 of the T.P.Act, inviting objections and suggestions thereon, under Government Extraordinary Gazette dated 11-11-1993 at page 84-85. Learned counsel for the petitioners does not dispute this fact. It is also not disputed by the learned counsel for the petitioners that in these writ petitions none of the petitioners has challenged the draft revised development plan published under section 13 of the T.P.Act. In these writ petitions the petitioners made prayer that the notification annexure-F dated 9-3-1995 of the Government of Gujarat, Urban Development and Urban Housing Department, by which the lands which are subject matter of these petitions and included in the development plan, reserving the same for Gujarat Housing Board, be quashed and set aside. Further prayer is made for a declaration that the lands of the petitioners reserved in the sanctioned development plan ceased to be reserved lands for the Gujarat Housing Board since 3-12-1989. A writ of prohibition has also been prayed against respondents No.1 and 3, that is, the Vadodara Urban Development Authority and the State of Gujarat, restraining them from including the lands of the petitioners in the development plan that might be finally sanctioned under section 17 of the T.P.Act by reserving the same for Gujarat Housing Board. Further prayer has also been made by the petitioners for quashing resolution No.39 of 1995 passed by the Gujarat Housing Board on 17-6-1995 and for some consequential reliefs. From the prayers which have been made it is clear that the petitioners have fully known the fact that the draft revised development plan has not been sanctioned under section 17 of the T.P. Act by the State of Gujarat. The words which have been used in the prayer "restraining them (respondents No.1 and 3) to include the said lands for the reservation of Gujarat Housing Board in the development plan that might be finally sanctioned under section 17" clinches the issue. The matter is pending with the State Government for passing appropriate order under section 17 of the T.P.Act. Notification annexure-F dated 93-3-1995 has been issued by the State Government in exercise of the powers conferred by the provisions of sub-clause (ii) of clause (a) of subsection (1) of section 17 of the T.P.Act, which provides that on receipt of the draft development plan under section 17, the State Government may, 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 the regulations in such manner as it may direct. The proviso to the said clause is relevant and material which empowers the State Government where it is of the opinion that substantial modifications in the draft development plan and regulations are necessary, instead of returning them to the area development authority or, as the case may be, the authorised officer under the said subclause, publish the modifications so considered necessary in the Official Gazette along with 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. It is the stage where the draft revised development plan is lying before the State Government for passing appropriate order under section 17, and it is not finally sanctioned. Instead of asking the authorities enumerated in section 17 to make necessary modifications which are considered necessary by the State Government in the revised draft development plan, the Government itself has proposed the modification. Proposal for modification under subclause (ii) of clause (a) of subsection (1) of section 17 of the T.P.Act does not change or convert the draft revised development plan pending for appropriate orders before the State Government of sanctioned of development plan. .R further apparent from the notification dated 9-3-1995 which reads thus: "AND WHEREAS the Government considers it necessary to make modifications in the said Draft Revised Development Plan of Vadodara Urban Development Area submitted by Vadodara Urban Development Authority to the State Government for sanction." In view fo these facts and circumstances and the provisions of the TP Act, it is clearly born out that under the notification dated 9-3-1995 the State Government has only proposed modification in the draft revised development plan of the Vadodara Urban Development Area submitted by the Vadodara Urban Development Authority to the State Government for sanction. 16. Challenge to the notification dated 9-3-1995 at the instance of the petitioners is also not understandable. By the notification dated 9-3-1995 what has been done by the Sate Government is to be noticed. The lands included in special civil applications No. 13613 of 1994 and 13696 of 1994 filed in this High Court were proposed to be excluded from the draft revised development plan of Vadodara Urban Development Area. The petitioners are not concerned with the lands, reference to which has been made above. This modification has been proposed as it transpires from the notification dated 9-3-1995, in the aforesaid special civil applications this Court passed interim order directing the respondents therein not to finalise the development plan of Vadodara Urban Development Area in respect of lands bearing Survey Nos. 198, 199/1, 1992/2, 1993/3 of village Manjalpur, Taluka and District Vadodar, as reserved for the purposes of the Gujarat Housing Board, and those special civil applications were pending for final decision of this Court. I..R State Government considered it expedient to modify the proposed draft revised development plan, excluding the lands which were subject matter of those special civil applications. Ms. K.A. Mehta, learned counsel for the Housing Board, has brought to the notice of this Court that those special civil applications have already been decided by this Court. Copy of the order passed by this Court in special civil application No.13613 of 1994 has been filed along with the affidavit-in-sur rejoinder in one of these petitions. The order passed by this Court in that petition reads as follows: "Learned counsel Shri Vakharia for the petitioner states that the petitioner would file further objections to the revised draft development plan with the State Government by 10th July,1995 and thereupon the St.R against the revised draft development plan latest by 15th August, 1995. In view of this direction, this petition stands disposed of as withdrawn at the instance of learned counsel Shri Vakharia for the petitioner". From this order of the Court it is also clear that the draft development plan is still awaiting final sanction or any other appropriate order of the State Government under section 17 of the T.P.Act. 17. Section 16 of the T.P.Act provides that after a draft development plan is published, and the objections or suggestions thereto, if any, are received the area development authority or, as the