Case: Bhikhubhai Vithlabhai Patel  Vs. State Of Gujarat

The Gujarat Town Planning and Urban Development Act, 1976 (for short ‘the saidcame into force with effect from February 1st, 1978. The State Government in exercise of its power conferred under the provisions of the Act constituted Surat Urban Development Authority (SUDA) which prepared a draft development plan whereby the lands belonging to the appellants were proposed for designating the use of the lands for residential purposes. The State Government having considered the draft development plan submitted by SUDA sanctioned the plan in the modified form on January 31, 1986 whereby thein question were reserved for ‘ducation complex of South GujaratThe final development plan was accordingly brought into force with effect from March 31, 1986. Neither the Area Development Authority nor the Authority for whose purpose land has been designated in the final Development Plan initiated any steps to acquire the lands of the appellants. The appellants having waited for a period of 10 years from the date of coming into force of the final development plan got served a notice on the Authority concerned requiring it to acquire the land within six months from the date of the service of such notice. However, no steps were taken by any of the authorities proposing to acquire the lands. Instead SUDA in purported exercise of its power under Section 21 of the Act sought to revise the development plan by reserving the lands in question once again for education complex of South Gujarat University.4. The appellants challenged re-reservation of the lands for South Gujarat University on various grounds which ultimately culminated in the judgment of this court in Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others . This court in clear and categorical terms laid down that Section 21 of the Act may impose statutory obligations on the part of the State and the appropriate authority to revise the development plan but under the grab of exercising the power to revise the development plan ‘the substantial right conferred upon the owner of the land or the person interestedcannot be taken away. It is observed38. Section 21 does not envisage that despite the fact that in terms of sub-section (2) of section 20, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a landowner under Section 22 of getting the landThe revised development plan submitted by SUDA was awaiting the sanction of the State Government. The State Government in exercise of powers conferred by the proviso to sub-clause (ii) of clause (a) of Section 17(1) of the Act proposed modifications in the draft revised development plan submitted by SUDA and proposed to designate the land under Section 12(2)(o) for ‘educationalThe appellants challenged the action on the part of State Government in issuing notification dated July 22, 2004 on various grounds. During the pendency of the Writ Petition the State Government came out with final notification dated September 28, 2004 designating the land in question for educational use under Section 12(2)(o) of the Act. The appellants sought the leave of the court to challenge the said notification also. The final notification was set aside on the ground that there was no material before the Government on the basis of which the decision to designate the lands for educational purposes could have been arrived at. The matter was remitted for fresh consideration in the light of the observations and the directions issued by the High Court.The Urban Development Authority designated the present lands as part of the residential zone in the development plan and submitted the same on 30th April, 1981 for sanction to the State Government. The State Government by issuing notification under the proviso to sub-clause (ii) of clause (a) of sub-section (1) of Section 17 deleted the same from residential zone and the lands were sought to be reserved for education complex of ‘South GujaratThe said plan was sanctioned under Section 17 of the Act on 3rd March, 1986. The appellants after expiry of period of 10 years gave notice under sub-section (1) of Section 20 calling upon the authority to acquire the land. Nothing happened in the matter.11. In the meanwhile, SUDA prepared and published the draft revised development plan in respect of the lands under Section 13 of the Act once again reserving the land for education complex of South Gujarat University. Notice regarding publication of the draft revised development plan calling suggestions on the proposed draft revised development plan was published in the Gazette on 29.2.1996. This was done in purported exercise of the power under Section 21 of the Act whereunder the development authority is under statutory obligation to revise the development plan at least once in 10 years from the date on which the final development plan comes into force.12. The appellants filed writ petitions in the High Court of Gujarat challenging the action re-reserving the land in the draft revised development plan for the same purpose namely education complex of South Gujarat University. The lis ultimately culminated in the judgment of this Court in Bhavnagar University (supra). This court heldSection 21 of the Act does not and cannot mean that substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the legislature that what is given by one hand should be taken away by the other.(ii) It is further held that the statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.(iii) It is further held that inspite of statutory lapse of designation of the land, the State is not denuded of its power of eminent domain under the general law, namely, the Land Acquisition Act in the event an exigency arises therefore.The State Government unmindful of and undaunted by the judgment of this court proposed to modify the draft revised development plan already submitted by the authority in purported exercise of the power conferred by the proviso to sub-clause (ii) of clause (a) of sub-section (1) of Section 17 of the Act by designating the land for educational use under Section 12(2)(o) of the Act. The Government having considered the objections issued final notification dated 28th September, 2004 confirming modifications proposed in the preliminary notification.14. The appellants filed a writ petition in the High Court of Gujarat challenging the preliminary notification as well as the final notification on various grounds.15. The High Court upon perusal of the records found that there is absolutely no material on record except the noting of the Minister concerned suggesting change of use of the land to education zone. The suggestion of the Chief Town Planner to place the entire area in residential zone has been ignored. The Area Development Authority in the first instance has suggested that the land in question be placed in residential zone. In the note prepared and placed before the Minister concerned on 23 April, 2004 it was suggested that the land should no more be reserved for the purpose of South Gujarat University and should be placed in appropriate zone. The note further suggested that after releasing the lands from reservation, the same should be placed under residential zone. On 21.7.2004 the Minister concerned passed the order which reads asmay be cancelled as suggested. However, (for the lands which are being de-reserved) educational zone in terms of Section 12(2)(o) of the Gujarat Town Planning and Urban Development Act be provided and notice be issued accordingly.It was pursuant to this direction, the preliminary notification dated 22nd July, 2004 came to be issued by the Government calling for objections and suggestions against the proposed substantial modifications of the development plan.

Reasoning:
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.