Case: Bhikhubhai Vithlabhai Patel  Vs. State Of Gujarat

acts reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good’ There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed.” 33. The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute.34. In the affidavit in reply filed on behalf of the State Government in the High Court, it was averred what weighed with the State Government to exercise its power under Section 17 (1) (a) (ii) of the Act was public interest at large. The State government thought it fit to classify the lands in question for educational use so that there is a specific pocket of educational institutional area in the fast developing city of Surat where its 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, land would not be available in future. This would resultantly make people to travel long distance from the city area for educational purpose. Public interest parameter is undoubtedly a valid consideration that could have been taken into account by the State Government. But this aspect of the matter is stated for the first time in the affidavit in reply and is not born out by the record. There is nothing on record suggesting as to what public interest parameter weighed with the State Government. The question is: was there any material available on record in support of what has been pleaded in the reply affidavit? 35. Be that as it may, the impugned preliminary notification itself does not reflect formation of any opinion by the State Government that it had become necessary to make substantial modifications in the draft development plan and, for that reason, instead of returning in the plan, decided to publish the modifications so considered necessary in the Official Gazette along with the notice inviting suggestions or objections with respect to the proposed modifications. It is very well settled, public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the decision making authority. Public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (See - Gordhandas Bhanji and Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi). 36. Neither the preliminary notification itself nor the records disclose the formation of any opinion by the State Government much less any consideration that any necessity as such had arisen to make substantial modifications in the draft development plan.37. On consideration of the facts and the material available on record, it is established that the State Government took the action proposing to make substantial modifications to the plan without forming of any opinion, which is a condition precedent for the use of power under proviso to Section 17(1)(a)(ii). The power, to restrict the use of land by the owners thereof, is a drastic power. The designation or reservation of the land and its use results in severe abridgment of the right to property. Statutory provisions enabling the State or its authorities to impose restrictions on the right to use one’s own land are required to be construed strictly. The legislature has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Section 17 and more particularly the proviso to Section 17 (1) (a) (ii) prescribes some of the conditions precedent for the exercise of power. The order proposing to make substantial modifications, in breach of any one of those conditions, will undoubtedly be void. On a successful showing the order proposing substantial modifications and designating the land of the appellants for educational use under Section 12 (2) (o) of the Act has been made without the Statement Government applying its mind to the aspect of necessity or without forming an honest opinion on that aspect, it will, we have no doubt, be void.38. For the view we have taken to strike down both the notifications and declare them ultra vires it is unnecessary to go into various other contentions urged before us.39. The appellants are deprived of their right to use the land for residential purposes for over a period of more than a quarter century. The Authority included the land in the residential zone but the State Government reserved the land for the purposes of South Gujarat University but the authority for whose benefit it was required failed to acquire the land leading to re-reservation of the land for the very same purpose which was ultimately struck down by this Court in Bhavnagar University (supra).40. The present move of the State Government to designate the land for the educational use under Section 12 (2) (o) of the Act is declared ultra vires and void and this shall put an end to the controversy enabling the appellants to utilize the land for residential purposes. The authorities including the State Government shall accordingly do the needful, without creating any further hurdle in the matter.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. A plain reading of Section 17 suggests that on receipt of draft development plan the State Government may sanction the draft development plan, for the whole of the area covered by the plan or separately for any part thereof; return the draft development plan for modifying the plan in such a manner as may direct; but in cases where the State Government is of opinion that the substantial modifications in the draft development plan are necessary, it may, instead of returning them to the authority or the authorised officer, publish the modifications so considered necessary along with the notice in the prescribed manner inviting suggestions or objections with respect to the proposed modifications. It may even refuse to accord sanction to the draft development plan and direct to prepare a fresh development plan under the provisions of the Act. Indeed a very wide power is conferred upon the State Government in the matter of sanctioning of the draft development plan. In the instant case we are concerned with the action of the State Government in making substantial modifications in the revised draft development plan. Section 21 of the Act mandates that the same procedure as provided for preparation and sanction of draft development plan including the one under section 17 would be applicable even in respect of revision of development plan.It is true the State Government is not bound by such opinion and entitled to take its own decision in the matter provided there is material available on record to form opinion that substantial modifications in the draft development plan were necessary. Formation of opinion is a condition precedent for setting the law in motion proposing substantial modifications in the draft development plan.22. Any opinion of the Government to be formed is not subject to objective test. The language leaves no room for the relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming its opinion. But there must be material based on which alone the State Government could form its opinion that it has become necessary to make substantial modification in the draft development plan.In the case in hand, wasthere any material before the State Government for its consideration that it had become necessary to make substantial modifications to the draft developmentplan? The emphatic answer is, none. The record does not reveal that there has been any consideration by the State Government that necessity had arisen to make substantial modifications to the draft development plan. We are of the view that there has been no formation of the opinion by the State Government which is a condition precedent for exercising the power under the proviso to Section 17 (1) (a) (ii) of the Act.We are of the view that the construction placed on the expression ‘reason towill equally be applicable to the expression ‘is ofemployed in the proviso to Section 17 (1) (a) (ii) of the Act. The expression ‘is ofthat substantial modifications in the draft development plan and regulations, ‘arein our considered opinion, does not confer any unlimited discretion on the Government. The discretion, if any, conferred upon the State Government to make substantial modifications in the draft development plan is not unfettered. There is nothing like absolute or unfettered discretion and at any rate in the case of statutory powers.The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute.34. In the affidavit in reply filed on behalf of the State Government in the High Court, it was averred what weighed with the State Government to exercise its power under Section 17 (1) (a) (ii) of the Act was public interest at large. The State government thought it fit to classify the lands in question for educational use so that there is a specific pocket of educational institutional area in the fast developing city of Surat where its 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, land would not be available in future. This would resultantly make people to travel long distance from the city area for educational purpose. Public interest parameter is undoubtedly a valid consideration that could have been taken into account by the State Government. But this aspect of the matter is stated for the first time in the affidavit in reply and is not born out by the record. There is nothing on record suggesting as to what public interest parameter weighed with the State Government.Neither the preliminary notification itself nor the records disclose the formation of any opinion by the State Government much less any consideration that any necessity as such had arisen to make substantial modifications in the draft development plan.37. On consideration of the facts and the material available on record, it is established that the State Government took the action proposing to make substantial modifications to the plan without forming of any opinion, which is a condition precedent for the use of power under proviso to Section 17(1)(a)(ii). The power, to restrict the use of land by the owners thereof, is a drastic power. The designation or reservation of the land and its use results in severe abridgment of the right to property. Statutory provisions enabling the State or its authorities to impose restrictions on the right to useown land are required to be construed strictly. The legislature has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Section 17 and more particularly the proviso to Section 17 (1) (a) (ii) prescribes some of the conditions precedent for the exercise of power. The order proposing to make substantial modifications, in breach of any one of those conditions, will undoubtedly be void. On a successful showing the order proposing substantial modifications and designating the land of the appellants for educational use under Section 12 (2) (o) of the Act has been made without the Statement Government applying its mind to the aspect of necessity or without forming an honest opinion on that aspect, it will, we have no doubt, be void.38. For the view we have taken to strike down both the notifications and declare them ultra vires it is unnecessary to go into various other contentions urged before us.39. The appellants are deprived of their right to use the land for residential purposes for over a period of more than a quarter century. The Authority included the land in the residential zone but the State Government reserved the land for the purposes of South Gujarat University but the authority for whose benefit it was required failed to acquire the land leading to re-reservation of the land for the very same purpose which was ultimately struck down by this Court in Bhavnagar University (supra).40. The present move of the State Government to designate the land for the educational use under Section 12 (2) (o) of the Act is declared ultra vires and void and this shall put an end to the controversy enabling the appellants to utilize the land for residential purposes. The authorities including the State Government shall accordingly do the needful, without creating any further hurdle in the matter.