JUDGMENT
A.P. Ravani, J.
1. In Special Civil Application No. 1657 of 1988 there are 28 petitioners who own land of different survey numbers of village Ichhapur, Taluka Choryasi, District Surat. In other petitions also the petitioners are owners of land of different survey numbers. Except in Special Civil Applications No. 3689 of 1988 and 8537 of 1989, the petitioners have challenged the variations and modifications made in the draft development plan of Surat Urban Development Area, and have also challenged the variations made in the draft development plan and the sanction given to the final development plan. These petitioners, in addition, have challenged the legality and validity of land acquisition proceedings initiated pursuant to notification under Section 4 of the Land Acquisition Act, 1894 dated March 22, 1987 and Notification under Section 6 of the Act dated March 17, 1988. In Special Civil Applications No. 3689 of 1988 and 8537 of 1989 the challenge is confined to the land acquisition proceedings. Since common questions of law and facts arise, at the request, and with the consent, of the learned Advocates appearing for the parties, all these matters have been heard together and being disposed of by this common judgment and order.
2. The area in connection with which the development plan is prepared is known as Surat Urban Development Area, which comprises of 722 sq. kms. of land. It covers Surat city and other surrounding 148 villages. As per 1981 Census, the population covered by the plan is 10.44 lacs. In the year 2000 A.D. the population of the area is estimated to be about 24 lacs. These details are furnished by the learned Advocate General at the Bar on the basis of the record available with him and the same is not disputed or denied.
3. The draft development plan prepared under the relevant provisions of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as “the Act”) was sanctioned by the Government on January 30, 1978. Objections were invited as provided under Section 13 of the Act on February 7, 1980. Upto the year 1985 no substantial progress was made. On April 30, 1985 the State Government suggested modifications in respect of the land belonging to the petitioners. In the draft development plan the land was earmarked in agricultural zone. The Government suggested that it should be reserved for GIDC housing and other related purposes. With this suggested variation, the final development plan was sanctioned on January 31, 1986. It was to come into effect on March 3, 1986. Within two days thereafter, i.e., on March 5, 1986 the Government proposed modification in the plan. The suggested modification is two fold:
(1) The change of the purpose in relation to the land from GIDC housing to reservation for obnoxious and hazardous industries;
(2) Other agricultural lands which were in the vicinity of the area are also included for the purpose of obnoxious and hazardous industries.
Thus the modification is purpose-wise as well as area-wise. Purpose is changed from GIDC housing to obnoxious and hazardous industries. As regards area, there is substantial expansion of the area reserved for the purpose of obnoxious and hazardous industries. As per modification, the expanded area now would include GAM TALAV (village pond) and also GAM TAL (village site) land of village Ichhapur. In respect of this very land acquisition proceedings have been started by notification under Section 4 of the Land Acquisition Act, 1894 published on March 22, 1987. Notification under Section 6 of the Land Acquisition Act, 1894 has been issued and published on March 22, 1988.
4. It is contended that in the draft development plan the land in question was included in agricultural zone. The Government suggested modification in April, 1985 in exercise of powers under Section 17(1)(a)(ii) of the Act. This action of the Government is alleged to be illegal and invalid. It is submitted that this action of the Government needs to be quashed and set aside. The contention of the petitioners is that the draft development plan was prepared by an expert body called Surat Urban Development Authority (SUDA) constituted under Section 5 of the Act. This Area Development Authority consists of experts in the field. Such expert body is required to perform its duties under the Act. When such expert body specified the land in agricultural zone there was no reason for the Government to shift the same to GIDC housing. It is further contended that it was not within the powers of the Government to suggest modification, and then to adopt modification in final development plan. Even if there be such power, the power ought not to have been exercised when suggestions were earlier made by expert body like SUDA.
4A. The aforesaid contention cannot be accepted for the simple reason that it is within the powers of the Government to suggest modification in the draft development plan. This is so provided under Section 17 of the Act. Entire reading of the Act indicates that not only at the stage of sanction of the final development plan, but at each and every stage the Government has power to give direction and make suggestion. The entire scheme of the Act suggests that the functionaries under the Act including the Urban Development Authority are required to perform their duties subject to the overall control and supervision of the Government. This is so provided under Section 122 of the Act. Even the Urban Development Authority is required to carry out such directions and instructions as may be issued from time to time by the State Government. The only condition is that such directions and instructions should be for the purposes of efficient administation of the Act. It may be noted that in case of dispute between the Urban Development Authority and the Government as regards the powers and discharge of the respective functions of the Urban Development Authority, the decision of the Government on such disputes is made final as provided under Section 122(2) of the Act.
5. In view of the aforesaid provisions of the Act, the argument that the Government had no power to suggest modification cannot be accepted. The argument runs counter to the scheme of the Act and also against the express provisions of the Act. If the argument is accepted it would amount to rewriting the provisions of the Act. It may even amount to repealing the provisions of proviso to Section 17(1)(a)(ii) of the Act. This proviso empowers the Government to suggest even substantial modification in the draft development plan; and instead of returning the draft development plan to the Area Development Authority, it empowers the Government to follow the procedure as laid down in the proviso. Therefore the contention that the Government had no power to make modification in the draft development plan has no merits and the same is rejected.
6. It is submitted that there was no need for making such modification and the power is exercised for extraneous purpose or that it is colourable exercise of power. It is submitted that the draft development plan remained pending with the Government from the year 1980 upto the year 1985. Some time in April, 1985 the Government suggested modification reserving the land for GIDC housing, and taking it out from the agricultural zone. The affidavit-in-reply filed on behalf of GIDC discloses that there were about 319 allotment applications for about 7 lac sq. mts. of land. 102 applications for allotment of industrial sheds were pending for want of land in Sachin area. 118 applications for different housing quarters were pending for Pandesara and Katargam industrial estates. These villages are in the vicinity of each other. Much of the sim tal land of village Ichhapur to which the petitioners belong have also been allotted as per the Government directions. This is so disclosed in para 5 of the affidavit-in-reply filed on behalf of GIDC. Again, reference may be made to the total area (722 sq. kmts) covered by the development plan. As disclosed in the affidavit-in-reply filed on behalf of the Government, a huge industrial complex which may involve investment to the extent of 6000 to 8000 crores of rupees is envisaged. As disclosed in the affidavit-in-reply filed on behalf of GIDC in all land of 920 survey numbers of village Ichhapur is under acquisition. Owners of only about 133 survey numbers have challenged the development plan and the acquisition proceedings. Rest of the agriculturists owning other survey numbers have not challenged the acquisition, la connection with this area there are about 319 applications for allotment pending with GIDC. It appears that only 43 scattered plots were available for allotment. About 36.12 hectares of land have been allotted to Gas Authority of India, and about 39.76 hectares of land is allotted to Indian Oil Corporation. It is also disclosed that about 291.63 hectares of land is allotted to an industrial house in private sector. It is further disclosed in the affidavit-in-reply that there is still demand for land for industrial sheds.
7. In view of the aforesaid facts disclosed from the record of the petition it cannot be said that the modification proposed was for extraneous purpose. Except for the bare allegation that the power is exercised for extraneous purpose and it is in colourable exercise of power, nothing is pointed out to show that the exercise of power is not for the purpose of the Act or that it is exercised on extraneous grounds. Therefore this contention also fails.
8. This brings us to the challenge to the variation made in the plan by resorting to the provisions of Section 19 of the Act. As indicated herein-above, the land which was reserved for GIDC housing and other related purposes is specified for obnoxious and hazardous industries. Apparently actions for this purpose have been taken within two days (March 5, 1986) after the final development plan having come into effect on March 3, 1986. Therefore it is submitted that immediately within two days from the date of the final development plan coming into effect, there could be no reason for making such variation. Vague allegations of mala fides have been made in paras 23 and 24 of the petition. On behalf of the Government, affidavit-in-reply is filed by one Shri D.A. Shah, Officer on Special Duty. Urban Development and Urban Housing Department of the State of Gujarat, wherein the allegations of mala fides have been denied and the details as regards the steps taken by the Government have been disclosed.
9. As disclosed in the affidavit-in-reply filed on behalf of the Government, after the Government suggested modification on April 30, 1985. changing the purpose of the land in question (from agricultural zone to GIDC Housing), proposal was received from the Urban Development Authority (SUDA) some time in October 1985. The proposal was to specify the land in question for the purpose of obnoxious and hazardous industries and also to extend the area for this purpose. When the proposal was received in October, 1985 the preparation and finalisation of the development plan had reached almost in its final stage. In view of this position the Government thought it proper to hold back the proposal for some time. The Government thought it proper to introduce the same by way of variation after the formalities with regard to sanction of the final development plan was over. This is the reason why the Government proposed modification on March 5, 1986 and thereafter it followed the requisite procedure.
10. Thus when the plan was sanctioned in January 1986 and when it became effective in March 1986 the proposal was very much with the Government. Since the proposal was received by the Government for suggested modification in October 1985, and since the formalities with regard to the finalisation of the plan had reached in its final stage, it is natural that the Government thought it proper to hold back the proposal to introduce the variation. Had it not been so, the entire gammut of preparing the plan afresh would have been required to be gone into. The finalisation of the plan which had already been delayed would have been further delayed. In that case, the development plan which covers total land area of 722 sq. km. and Surat City as well as other 148 villages would have got stuck up. Therefore, the course adopted by the Government cannot be said to be in any way unjust, or arbitrary.
11. This decision of the Government to introduce the variation was not without purpose. A committee headed by Mr. Lavrajkumar was appointed for fixing the land-fall point for gas pipeline. This Committee fixed the point at Ubhrat 18 kms. away in the southern direction from Surat. On account of the fixation of this land-fall point huge area of land in the vicinity thereof was required for the purpose of obnoxious and hazardous industries. As disclosed in the affidavit-in-reply, Hazira Development Area is also just near village Ichhapur wherein the land belonging to the petitioners is situate. Justification for the variation is also found from the facts disclosed in the affidavit-in-reply filed on behalf of GIDC. As stated hereinabove, out of 920 survey numbers which are under acquisition, owners of 133 survey numbers only have challenged the plan and the acquisition proceedings. Some land has already been allotted by GIDC out of the land of village Ichhapur. Number of applications are pending with GIDC demanding land for industrial sheds.
12. From the aforesaid discussion it becomes evident that the variation suggested by the Government and the procedure resorted to by the Government is certainly in public interest, as provided under Section 19 of the Act.
13. While examining the challenge to the sanction to the final development plan and the variation made therein the purpose for which the development plans are prepared and the object to be subserved by the same needs to be borne in mind. It may be that in most of such schemes and plans some individual interest may suffer. But such plans are prepared with wider long-term socio economic perspectrive in view. This is the reason why the Full Bench of this High Court in the case of Dungarlal Harichand v. State of Gujarat and Ors., reported in (1976) XVII GLR 1152 has observed as follows
For proper framing of schemes and implementing them, the individual rights are made subordinate to the wider social interests of the society and civil amenities. The individual interests are not allowed to outweigh and prevail over the wider social interests so as to thwart or torpedo salutary social schemes of Town Planning for the benefit of the public as a whole. Schemes such as the one with which we are concerned ought not to be allowed to suffer and individual interests have to be subordinated so as to subserve public good as they are to be expeditiously implemented in accordance with the true legislative intention of the Act. An e’aborate procedure is prescribed under the Act and the Rules to achieve the desired objective.
The aforesaid observations are applicable to development plans also. While framing such development plans, individual rights and interets are bound to be subordinnted to the wider social interest. It is a precondition of such plans to have long term perspective in view. As provided under the Act the plan is required to be revised every ten years and at the end of twenty years again it is required to be reviewed and if necessary fresh plans made. Keeping this perspective in mind one has to take into consideration the development of industry, rising population, increase in economic activity such as business and commerce. One is also required to take the environmental aspects while preparing such plans. After taking all these factors into consideration when development plans are prepared it may be that individual interests may not be protected to the extent one may like. That is the reason why individual interests are subordinated to the higher and wider social interests. Looking at the problem in the aforesaid perspective enuntiated by the Full Bench of this High Court it becomes evident that there is no substance in the challenge made to the development plan.
14. Acquisition of the land is challenged on the ground that the land under acquisition is rich fertile land and other land is available for the same purpose. The submission is based without substantiating the same by placing relevant material on the record. On the contrary as disclosed in the affidavit-in-reply, the entire area is required for GIDC and the same is reserved for hazardous and obnoxious industries. Simply because the land is rich and fertile it cannot be said that the land be excluded from acquisition. If such land is acquired, compensation will be paid on the basis of the market value which will be determined by taking into account even the richness of the land. The land acquisition officer and the Courts are required to take into consideration amongst other factors, even the fertility of the land in question while determining the market price. If one looks at the affidavit-in-reply filed on behalf of GIDC it becomes evident that GIDC has utilised considerable portion of the land. GIDC is in fact in need of further land. It may be noted that owners of only 133 survey numbers out of 920 survey numbers of the same, village have challenged the development plan and the acquisition proceedings. Therefore it cannot be said that the owners of roughly about 300 survey numbers of land would be owning less fertile land in the same village. As indicated hereinabove on account of the general development of the area and having regard to the wider and longer perspective in view and taking the needs of the society into consideration it may be that individual interest may have to be subordinated to the wider social and public interest. Again, for the land under acquisition the petitioners would be suitably compensated. Therefore the ground that because the land is rich agricultural land the same should not be acquired has no merits.
15. Vague allegation is made that other land is available. Therefore, it is submitted this land should not be acquired. However this allegation has no factual basis. In fact it is shown that almost entire land of ‘sim tal’ of village Ichhapur is under acquisition. It is also not correct to say that GIDC is unable to develop the land. On the contrary GIDC needs further lands. Materials placed on the record by GIDC disclose that industrial sheds have been developed and there are number of applications pending with GIDC.
16. The allegation that for some land urgency clause is applied while in respect of the land of certain survey numbers urgency clause is not applied and therefore there is non-application of mind has also no merits. On the contrary it indicates that there is applicaton of mind while applying urgency clause. Otherwise urgency clause would have been applied in case of lands of all survey numbers.
17. The argument that on some lands buildings and temples are situate and therefore the same should not be acquired has also no merits. As far as temples are concerned, if there be any, the appropriate authority will take care not to hurt the religious feelings of any community. As regards other buildings are concerned, simply because the buildings are standing on the land it cannot be said that the land cannot be acquired. Vague allegations that certain guidelines under the Land Acquisition Manual have not been followed have also no merits.
18. It is contended that in Special Civil Application No. 3125 of 1981 which is admitted and pending for final hearing similar point as regards the challenge to the variation made in the final development plan pursuant to the actions taken on March 5, 1976 is raised. Therefore relying upon the decision of the Supreme Court in the case of Bir Bajrang Kumar v. State of Bihar and Ors., reported in AIR 1987 SC 1345, it is submitted that these matters should be admitted. The contention cannot be accepted for the simple reason that the Supreme Court decision is not applicable. In the case before the Supreme Court it had so happened that the High Court had admitted a petition involving identical point and yet another identical petition was dismissed by the High Court (emphasis supplied). Therefore the Supreme Court observed that this would create a very anomalous position and thers was the possibility of two contradictory judgments being rendered in the same case by the High Court. In that context the Supreme Court directed that the matter be admitted and remanded the matter to the High Court. In the instant case group of these petitions and Special Civil Application No. 3125 of 1981 are not identical petitions and do not involve identical points. Firstly it may be noted that it is a petition of the year 1981 while the variation in the development plan is made in the year 1986. Therefore when that petition was admitted the point regarding the legality and validity of the variation in the development plan was not there. It is only byway of amendment introduced afterwards that the point is raised therein. Even so we would have heard that matter together with these petitions, had the matter been ready. However, in that petition the Government has not filed affidavit-in-reply and hence it is not possible to hear that matter together with these petitions.
19. The decision of the Supreme Court in the case of Bir Bajrans Kumar (supra) has been interpreted and explained by one of us (myself) in the case of Naranbhai v. State of Gujarat, reported in [1988 (1)] XXIX (1) GLR 37. As indicated therein the petitioners cannot claim as of right that their matter be heard and decided finally along with some other petitions or some other case. All that the petitioners can claim is that the points raised by them be decided on merits. Moreover, as indicated hereina-bove, another petition which was rejected by the High Court and which was carried before the Supreme Court was identical petition and there was a possibility of conflicting judgments in the same case. In view of that factual background the Supreme Court has passed the order. In the instant case no such eventuality is likely to arise. In facts of the case all that the petitioners can claim is that their matter be decided on merits and reasons be given. In this case the other side has also filed affidavit-in-reply. All the contentions raised by the petitioners are being decided with reasons. Therefore the petitioners cannot claim that simply because one petition has been admitted and pending their matters also should be admitted. We see no reason to take a different see no matters also should be admitted. We sec no reason to take a different view than the one taken in the case of Naranbhai (supra).
20. It may be noted that in Special Civil Application No. 2014 and 2026 of 1988 and in Special Civil Application No. 2746 of 1990 the petitioners have challenged the legality and validity of the development plan and have also challenged the acquisition proceedings. The arguments advanced are common. Therefore it is not necessary to refer to the same in further details.
21. As far as Special Civil Applications No. 3689 of 1988 and 8537 of 1989 are concerned, only the acquisition proceedings are challenged. In respect of this challenge the arguments advanced are common. For the same reasons these petitions are also required to be rejected.
22. For the reasons indicated hereinabove, all the petitions are rejected. Ad-interim relief granted_earlier stands vacated. At this stage the learned Counsel appearing for the petitioners requests that the ad-interim relief granted earlier be continued for some time so as to enable the petitioners to approach the superior forum as it may be available to them. The request is granted. Ad-interim relief granted earlier is directed to continue upto July 17, 1991.