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SCA/13731/2005 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13731 of 2005
=========================================================
VRUNDAVAN
PARTY PLOT - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
HARIN P RAVAL for Petitioner(s) : 1,
MR SATYAM
CHAYYA, AGP for Respondent(s) : 1,
NOTICE SERVED for Respondent(s)
: 1,
MR MD PANDYA for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 24/01/2007
ORAL
ORDER
Draft
amendment granted.
The
petitioner has preferred the petition for appropriate writ to
declare that the designation/reservation of the lands sub-plot No.11
bearing Survey No. 1, Tikka No.9-c admeasuring 29035 sq.mtr. has
lapsed and the petitioner has also prayed the other consequential
relief in the petition based on the premise that the reservation has
lapsed.
Heard
Mr. Raval, learned counsel for the petitioner, Mr. Pandya, appearing
for respondent No.2 and Mr. Chayya, learned AGP for respondent No.1.
Mr.
Pandya for the Urban Land Development Authority at the outset
declared before the Court that in view of the preliminary
notification for revised development plan, the land is not reserved
or sought to be reserved for any purposes of the local authority or
Urban Land Development Authority and he submitted that the
designation is different than the reservation.
It
was submitted by the learned counsel appearing for the petitioner
that in view of the principles laid down by Division Bench of this
Court in its decision in the case of Palitana
Sugar Mill Pvt. Ltd & Anr. Vs. State of Gujarat & Ors.
reported at 2001(4) GLR, 3049, the reservation would lapse if
the acquisition proceedings are not undertaken by the acquiring body
pursuant to the development plan and he further submitted that if
the reservation has lapsed under the guise of the Revised
Development Plan, it is not open to the Authority to contemplate the
same reservation or the reservation for different purpose and
therefore, he submitted that this Court may interfere and entertain
the petition. Mr. Raval also submitted that the plans which are
submitted with the draft amendment goes to show that the reservation
is for public institutional purpose and therefore, it cannot be said
that the use may be permitted by the land holder or any private
person and therefore, it must be deemed as the reservation. He also
submitted that when the position of law is already laid down by the
Division Bench of this Court, no useful purpose would be served in
relegating the matter to the development authority to file objection
and to take appropriate decision. In his submission, it would be a
futile exercise. He therefore submitted that this Court may admit
the petition to finally adjudicate the issue.
Mr.
Pandya, learned counsel appearing for the Development Authority in
addition to the aforesaid declaration, by relying upon the another
subsequent decision of the Division Bench of this Court (Coram:J.M.
Panchal & Abhilasha Kumari,J.J.) dated 15.11.2006 in Letters
Patent Appeal No. 1452 of 2005, contended inter alia that the
designation is different than the reservation. He further submitted
that the decision of the Palitana Sugar Mill (Supra) upon which the
relevance is placed by the learned counsel for the petitioner came
to be considered by the Division Bench of this Court and the
decision in the case of Palitana Sugar Mill is treated as that of
laying down the principles that the reservation would lapse if the
acquisition has not taken place within the requisite period and it
is not a decision to be treated as no other reservation or the
designation is permissible. He therefore submitted that when the
matter is yet to be finalised by the Development Authority, this
Court may not entertain the petition.
Having
considered the above, it appears that the whole premise of the
petition is on the basis that the reservation and the designation
are same thing. As such, the reservation has different
repercussions and the designations will have different
repercussions. Reservation means the land to be acquired by the
body for the purpose to be achieved by such body whereas the
designation means the land to be used for such purpose and it only
restricts the use and it does not contemplate the acquisition.
Further, whether such designation even otherwise also is to be
continued or not is an aspect yet to be finalised by the authority
but at this stage it cannot be said that the cause on the basis of
which the petitioner has based the petition has continued to remain
in operation. The aforesaid is coupled with the circumstance that
as per the respondent, development authority, the notice under
Section 20 of the Gujarat Town Planning & Urban Development Act
(hereinafter referred to as ‘the Act’) was not given to the
acquiring body and therefore, the reservation would not lapse. I
find that it may not be necessary for this Court to decide the said
aspects as to whether the reservation had lapsed or not, since now,
as per the proposed development plan, the reservation has not
continued over the land in question as per the declaration made and
recorded hereinabove, and the only use is notified by providing of
the zone etc.
It
is otherwise also well settled that normally when the statutory
authority is to exercise the power, the Court would normally not
interfere in such exercise of power on the premise that the wisdom
would prevail or that the decision would be as per the statutory
provision or as per the well settled principles of law. In such
cases, normally the Court would permit the statutory authority to
exercise the power and if the citizen or any person affected is
aggrieved to such initiation of the power, the Court would relegate
such persons to file the objections, permit the statutory authority
to consider such objections and to take appropriate decision. It is
only in exceptional cases where either there is inherent lack of
power or initiation of the action is ex-facie absurd or malafide or
with bias consideration, the Court may exercise the power at the
stage of initiation of the exercise of the statutory power. No such
considerations can be said as satisfied, more particularly when the
whole premise of the petition is on the basis of the reservation
which is no more in existence and what is under contemplation is the
designated use of the land.
If
the petitioner has any grievance to raise against the designated use
of the land as per the preliminary notification, the petitioner may
raise objections as may be permissible in law and if such objections
are raised by the petitioner, the authority shall consider the same
in accordance with law but at this stage. Considering the facts and
circumstances, I find that it would be a case to entertain the
petition.
Mr.
Raval, learned counsel for the petitioner attempted to submit that
when the petition was filed, there was no preliminary notification
for revised development plan including of the designation, and
therefore, the same may not be considered by this Court. I am
afraid such contention can be accepted when this Court is to
exercise the power under Article 226 of the Constitution in the
matter of undertaking judicial scrutiny of the development plan.
There is no reason not to consider the subsequent development which
has happened pending the petition. Even otherwise also, the Court
does not exercise the power for academic purpose and the writ would
be futile if there is change in circumstances and therefore, the
said contention of Mr. Raval cannot be accepted.
Mr.
Raval, learned counsel for the petitioner also attempted to submit
that if this Court does not entertain the petition at this stage and
relegates the petitioner to file objection before the authority, the
order may be constructed as that the Court did not interfere with
the action and the authorities can proceed and therefore, he
submitted that this Court may entertain the petition at this stage.
I find that such contention raised is only on misconception and on
hypothesis. The effect of the order can always be seen and it would
be reflected in the order of this Court by express language. If the
order is misunderstood, it can always be examined at the appropriate
stage, if challenge is brought to this Court. But on such
misconception and hypothesis, the petition cannot be entertained at
this stage.
Mr.
Raval, learned counsel appearing for the petitioner also attempted
to submit that if the authority decides to drop the designation in
the revised development plan by accepting the objection of th
petitioner, the original development plan for reservation would
stand revived and therefore, he submitted that the challenge would
also continue to survive and therefore, this Court may entertain the
petition. In my view, such contention is also on misconception
inasmuch as once there is an initiation of the revised development
plan in which the reservation has not continued and if the
designation is made in either way, it would not result into revival
of the earlier development plan which has loosed its operation on
account of the subsequent action of the development authority for
revised development plan. Hence, the said contention cannot be
accepted.
Under
the above circumstances, the petition is not entertained at this
stage. However, it is directed that if the petitioner files
objection to the revised development plan, the same may be
considered by the authority in accordance with law in any case,
prior to the taking final decision on the revised development plan.
Disposed
off accordingly.
(JAYANT PATEL, J.)
*bjoy
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