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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL No 576 of 1999
in
SPECIAL CIVIL APPLICATIONNo 9629 of 1992
with
SPECIAL CIVIL APPLICATION No 10744 of 1993
For Approval and Signature:
Hon'ble MR.JUSTICE R.K.ABICHANDANI
and
Hon'ble MR.JUSTICE M.C.PATEL
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1. Whether Reporters of Local Papers may
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
to see the judgements? YES
2. To be referred to the Reporter or not? YES :
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement? NO
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder? NO
5. Whether it is to be circulated to the Civil Judge? : NO
NO
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SURAT PANJRAPOLE
Versus
STATE OF GUJARAT
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Appearance:
1. LETTERS PATENT APPEAL No. 576 of 1999
MS KJ BRAHMBHATT for Appellants
MR UA TRIVEDI, AGP for Respondent No. 1
MR SN SHELAT, ADVOCATE GENERAL with
MR PRANAV G DESAI for Respondent No. 4 & 6
MR SUNIT S SHAH for Respondent No. 3
MR GN SHAH for Respondent No. 5
MR PRASHANT G DESAI for Respondent No. 2
2. Special Civil ApplicationNo 10744 of 1993
MR JR NANAVATI for Appellants
MR PRASHANT G DESAI for Respondent No.1
MR MR SHAH for Respondent No. 2
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CORAM : MR.JUSTICE R.K.ABICHANDANI
and
MR.JUSTICE M.C.PATEL
Date of decision: 27/03/2001
ORAL COMMON JUDGEMENT
(Per : MR.JUSTICE R.K.ABICHANDANI)
1. Both these matters raise common questions and are
argued together. The Special Civil Application No.
10744 of 1993 was referred by the learned Single Judge on
4-8-1994 to a Division Bench, and by order dated
4-11-1999, was required to be heard with the Letters
Patent Appeal No. 576 of 1999.
2. The common question that arises in these two
matters is, whether plots reserved for "Sub Centre" in
the Town Planning Schemes can be handed over by the
appropriate authority, which in the present case is the
Surat Municipal Corporation, for development to other
authorities for their use for setting up telephone
exchange or offices of the nationalised banks and of the
I.O.C., and as to whether such entrustment amounts to
variation or change in the Scheme.
3. The Letters Patent Appeal No. 576 of 1999 arises
from Special Civil Application No.9629 of 1992, in which
the petitioner - Trust through its trustees sought a
direction against the respondent - Municipal Corporation
to withdraw its decision contained in the resolution No.
86 dated 9-4-1992 passed by the Standing Committee, at
Annexure `B' to that petition, by which it was resolved
to lease out the lands of final plot No. M/4 sub-plots
Nos. P-1, P-3, P-4 and P-5 to the Banks and the Indian
Oil Corporation Ltd. as mentioned therein for
development on the terms and conditions determined by the
Corporation in its General Meeting dated 15-12-1991, and
further prayed for de-reserving the said final plot no.
M/4 from the reservation made for "Sub Centre" in the
Town Planning Scheme No. 9 (Majura), and to restore the
same to the petitioner - Trust.
3.1 The Special Civil Application No. 10744 of 1993
has been filed by a Power of Attorney of the original
owners of survey No. 489/1, 489/2/P and 489/2/C of
Adajan, raising a similar challenge against the leasing
out of the land of final plot No. 33 of the Town
Planning Scheme No. 12 which was reserved for "Sub
Centre" to the Telecommunication Department for putting
up a Telephone Exchange and seeking a direction for
setting aside the resolution No. 522 dated 26th May
1993, at Annexure `H' to that petition, passed by the
Standing Committee of the respondent - Municipal
Corporation, by which it was resolved to handover the
final plot No. 33 admeasuring 6527 sq. mtrs. in the
Town Planning Scheme No.12 to the Telecommunication
Department on lease for development purpose. The
petitioners also sought a direction on the
Telecommunication Department to handover the possession
of the plot back to the respondent Municipal Corporation.
The Power of Attorney which is produced on the record was
executed on 17th September 1993, whereby it was decided
to empower its holder to take steps and to litigate for
the purpose of getting the original plots including the
land of the original plot No. 491/1 and other lands
de-reserved. The power of attorney is described as
irrevocable power of attorney and the power of attorney
holder is empowered to approach the High Court and the
Supreme Court for getting the lands de-reserved.
4. According to the petitioners of Special Civil
Application No. 9629 of 1992, from which the Letters
Patent Appeal No. 576 of 1999 arises, the petitioner
Trust is a Public Charitable Trust, with its objectives
to take care of stray, abandoned, weak and handicapped
cattle which may be in the process of being sent to
slaughter house. The Trust held about 1,76,739 sq.
mtrs. of land in the municipal area of Surat. This land
was covered in the Town Planning Scheme No. 9 (Majura)
as per the original plot No. 5825-C. On reconstitution
of the plots, the Trust got final plot No. 5825-C
admeasuring 1,24,667 sq. mtrs. and according to the
petitioner - Trust, it was deprived of 52,072 sq. mtrs.
of land, for which compensation of Rs.3,59,193=00 was
paid to the Trust after adjusting the incremental charge.
Out of the said land admeasuring 52,072 sq. mtrs., which
was placed under reservation (for a sub-center), final
plot No. M/4 was demarcated and out of that plot,
sub-plots Nos. P-1, P-3, P-4 and P-5 were carved out.
The land of plot No. M/4 admeasuring 6443 sq. mtrs.
included some portion of the petitioners' lands. Out of
these sub-plots, land of sub-plot No. P-1 admeasuring
2250 sq. mtrs. was allotted to the State Bank of India,
the land of sub-plots No. P-3 and P-4 admeasuring 2400
sq. mtrs. were allotted to the Indian Oil Corporation
Ltd. and the land of sub-plot No.5 admeasuring 2387 sq.
mtrs. was allotted to the Bank of India. Thus, an
aggregate of these sub-plots Nos. P-1, P-3, P-4 and P-5
of 10,061.19 sq. mtrs. of land was allotted to these
authorities. According to the petitioners, their basic
challenge against such a course was that the land which
was reserved for "Sub-center" could not have been
diverted for the purpose of allotment to such
institutions, and that such allotment was not for any
public purpose. The grievance of the petitioner - Trust
was that it was paid only a sum of Rs.3,59,193=00 for
their land, while the Corporation had made a huge profit
by transferring a part of such land for nearly
Rs.6,87,430=00. The petitioner therefore has challenged
the resolution, and seeks de-reservation of these lands
for being restored to the petitioner - Trust.
4.1 The Surat Municipal Corporation contested the
petition by contending in its affidavit-in-reply that the
Town Planning Scheme No.9 had become a part of the
Gujarat Town Planning & Urban Development Act, 1976, as
provided by section 65(3) thereof after it was sanctioned
on 24-2-1984, and came into force from 23-4-1984. The
lands in question which were reserved for "sub-center"
for public purposes had vested in the Corporation free
from all encumbrances, as provided by section 67(a) of
the Act, and therefore, the petitioners were not entitled
to put up any claim in respect thereof. It is stated
that, after the Town Planning Scheme was framed, the
petitioners were re-allotted 1,24,667 sq. mtrs. of land
and the remaining portion of land was put under
reservation for different public purposes like road site,
sub-station, site for school etc. The petitioners had
taken advantage of the re-allotted plots and had also
accepted the compensation worked out after adjustment.
According to the respondent - Corporation, the land was
being used for public purpose for which it was reserved
as it was being utilized for "sub-center". The said Town
Planning Scheme No. 9 (Majura) covered a total area of
110 hectors. The local authority had declared its
intention to prepare a draft scheme by its resolution No.
41 dated 21-6-1965 and the draft scheme was approved by
the State Government on 19-5-1971. The preliminary
scheme was prepared under the said Act and sanctioned on
12-12-1980 by the State Government. The preliminary
scheme came into force from 27-1-1981 and on its coming
into force, all rights of the petitioners were settled
and the lands which were meant for public purpose vested
in the respondent No.2 - Corporation free from all
encumbrances. A final scheme was sanctioned under the
notification issued by the State Government on 24-2-1984.
According to the Corporation, the Town Planning Officer
while determining the value of the land under section
32(1)(iii) of the Bombay Town Planning Act (which
corresponded to section 52(3) of the Act of 1976), had
decided whether the reservation of the plot was wholly or
partially beneficial to the owners or residents of the
scheme and as regards plot No. M/4, it was held that it
was 3/4th beneficial to the owners or residents of the
scheme and 1/4th beneficial to the general public.
According to the Corporation, though the expression
`sub-center' is not defined, the town planner had opined
that the use of land which was reserved for sub-center
can be for health center, library, market, school,
playground and other public purposes. It is stated in
the affidavit in reply that, as per the allotment made to
the respondents No. 3 to 5, it was already made clear
that the land will be used as per the Town Planning
Scheme and Building Bye-laws. It is stated that these
respondents were public bodies and they are going to use
the land for public purposes. It is pointed out that the
Corporation has already handed over the possession of the
land in question to the respondents No. 3 to 5 who have
paid a total sum of Rs.6,05,60,155=00 to the Corporation.
Since the land had vested in the Corporation, there was
no scope of any de-reservation of the land.
4.2 The respondents No. 3 to 5 who have been given
sub-plots on lease have filed affidavits contesting the
petition. The respondent No.5 - Indian Oil Corporation
Ltd. in the affidavit in reply filed on its behalf has
stated that, an aggregate amount of Rs.3,60,49,330=00 is
paid by the I.O.C. to the Municipal Corporation for the
sub-plots in question, which admeasure 5424 sq. mtrs.
The land was given under the lease deed executed on
26-11-1992 and the I.O.C. has incurred stamp charges of
Rs.50,51,150=00 in respect thereof, as also the
applicable registration charges.
4.3 In the affidavit in reply filed on behalf of the
respondent No.4 - Bank, while contesting the petition, it
is pointed out that the respondent No.4 has already made
a payment of Rs.1,05,46,875=00 towards the premium for
the development rights as well as lease consideration and
it has been put in possession of the sub-plot No. P-1
since 21-11-1992. It is stated that the respondent No.4
is established under the State Bank of India Act, 1955,
and majority of its shares are held by the Government of
India. It is stated that the land in question is going
to be used for public purpose. It is contended that the
expression `sub-center' derives its colour from the
expression `civic-center' and such centers are reserved
for locating administrative offices, post offices, banks,
clubs, building for recreational and cultural purpose
etc. which are in the nature of public amenities
provided for the residents of the area. It is also
contended that the banking services, apart from being a
nerve center for business, commerce and industry, are
absolutely essential even for the common man, and that,
in the prevailing situation in the city, it was
imperative for the local authority to make available land
for providing and maintaining essential services such as
banking in the area.
4.4 Similar stand is taken in the affidavit in reply
filed on behalf of the respondent No.6 - Bank and it is
pointed out that the respondent No.6 has already made a
payment of Rs.1,98,98,771=00 towards the premium for the
development rights as well as lease consideration and
that, it has been already put in possession of sub-plot
No. P-6, which is going to be used for the purpose of
sub-center for which it is reserved, because, it intends
to construct a building complex for its administrative
offices, training center and branch.
4.5 The respondent No.3 - Bank has also in its
affidavit in reply stated that it has already paid a sum
of Rs.1,39,63,950=00 towards the premium for the
development rights as well as lease consideration and
that, it has been put in possession of sub-plot No. P-5,
in which it intends to construct a building complex for
its regional office and a branch and also to provide
residential accommodation for its officers working in the
regional office and branches in the city. According to
the respondent No.3, sub-plot No. P-5 is thus going to
be used for the purpose of sub-center, for which it was
reserved.
5. In Special Civil Application No. 10744 of 1993,
according to the petitioners, the lands bearing survey
No. 489/1, 489/2/P and 489/2/C of Adajan belonged to
them. The Corporation declared its intention to make a
town planning scheme for the area of Adajan by issuing a
public notice on 16-8-1974 under section 22(1) of the
Bombay Town Planning Act, 1954. A draft scheme was
prepared for the area under sub-section (2) of section 42
of the Gujarat Town Planning & Urban Development Act,
1976 inviting objections, and after considering the
objections and following the required procedure,
preliminary town planning scheme No. 12 (Adajan) was
made under the notification dated 20th April 1977 issued
by the Government. The Government in exercise of its
powers under section 65 of the Act of 1976 sanctioned the
scheme by its notification dated 21st February 1987,
fixing 27th March 1987 as the date for the purpose of
clause 65(2)(b) of the Act. By notification dated 30th
March 1990, the final scheme was sanctioned and the 1st
of May 1990 was the date fixed for the purpose of section
65(2)(b) of the Act. The lands of the petitioners were
covered by the said scheme. Survey No. 489/1/P became
part of final plot No.33 (which included lands of others
also), and survey Nos. 489/2/B, 489/2/C and 489/1/P were
given final plot No.34. The final plot No.33 was
reserved under the scheme for "sub-center" and in the
remarks column, it was mentioned that the said sub-center
was for school, health center, market etc. According to
the petitioners, their power of attorney holder was
informed by the Municipal corporation by its letter dated
27th August 1993 with reference to his application dated
26th August 1993 that, the town planning scheme No.12 was
sanctioned by the Government and the use of "sub-center"
in that regard was shown for the purpose of school,
health center and market. According to the petitioners,
the reservation of final plot No.33 for "sub-center"
became the public purpose as if the same were enacted in
the Act and became the statutory purpose in law, which
could not be changed and therefore, the respondent
Corporation was bound in law to use the said final plot
No.33 only for the purpose of "sub-center" namely,
school, health center, market etc. and that, it was not
competent to change the statutory purpose of reservation
under the scheme and make the land available for any
other purpose. By resolution No. 522 made on 26th May
1993, the respondent - Corporation gave a lease, for 99
years, of the land admeasuring 6527 sq. mtrs. of final
plot No. 33, to the Telecommunication Department, which
according to the petitioners amounted to contravention of
the provisions of the Act and the Rules, and violated the
proprietary rights of the petitioners and contravened the
provisions of Article 14, 19(1)(f) and 300-A of the
Constitution. The impugned resolution is challenged on
the ground that it is illegal, arbitrary and without
jurisdiction and contravene the fundamental rights of the
petitioners and their proprietary rights. Though in the
body of the petition, the impugned resolution is
challenged on the ground that it adversely affects the
proprietary rights of the petitioners and violates
Article 14, 19(1)(f) and 300-A of the Constitution, in
the prayer clause, a direction is sought that the
Telecommunication Department should handover the
possession of the said plot back to the respondent -
Municipal corporation.
5.1 The Municipal Corporation contesting the petition
has stated in the affidavit in reply filed on its behalf
that, the final plot No. 33 which was reserved for
sub-center for Surat Municipal Corporation, was
reconstituted not only from survey No. 489/1, but also
from revenue survey Nos. 488/1 and 490. The owners of
survey Nos. 489/2/B and 489/2/C were given a total area
of the said survey numbers and a large part of the area
of survey No. 489/1 by reconstituting the final plot No.
34. The final plot No. 33 was reserved for "sub-center"
for developing the public facilities like health center,
market, offices, post office, bank, telephone centers
etc. According to the Corporation, there was no change
in the public purpose for which the plot was reserved.
It is stated that the uses which were mentioned namely,
school, health center, market etc., were not exhaustive
but only illustrative, and that the word `sub-center'
means a center for public utility services like bus,
telephones, shops, school, market, post office, police
station etc. and it does not mean only health center,
school and market. In the map of the town planning
scheme which is attached to the affidavit in reply, it is
pointed out that, the final plot No. 33 reserved for
sub-center is as per the legend described a plot for
public purposes.
5.2 The respondent No.2 - Telecommunication
Department of the Union of India in the affidavit in
reply filed on its behalf stated that, the final plot No.
33 was handed over to the respondent no.2 on 14-7-1993
and a payment of Rs.1,46,85,750=00 was made to the
Municipal corporation, and a possession receipt is
annexed at Annexure R/1 to the affidavit in reply. This
plot was allotted for the purpose of construction of
Telephone Exchange of 25,000 lines in Rander area of
Surat city, which was in the interest of public at large.
It is pointed out that there is a long waiting list for
telephones in Rander area and therefore, it was necessary
to construct a telephone exchange at the earliest. The
Telecommunication Department is likely to invest an
amount of Rs. 20 crores for providing cables and
exchange equipment in the interest of public facility.
It was necessary to have a bigger plot like 7,000 sq.
mtrs. so as to enable the Telecommunication Department
to instal telephone exchange having capacity of 25,000
lines.
6. In Special Civil Application No. 9629 of 1992,
the learned Single Judge by his elaborate judgement
rendered on 1-2-1999 held that the expression `public
purposes of all kinds' in section 40(3)(e) of the Act
would show that the reservation of land for public
purposes was not confined to any particular purpose and
that, there may be more than one purpose for which the
land may be provided in the scheme. It was held that the
word `sub-center' had acquired its definite meaning in
the field of town planning and when it was said that a
particular land was reserved for "sub-center", it would
mean that there will be a center to serve the various
purposes which are essentially for the public, living in
that area. The learned Single Judge referred to the
General Development Control Regulation, 1986,
particularly its Appendix `H', which provided for zoning
regulations, which showed in the tabulated form that
residential zone primarily would include public
assistance, institutions, banks and other types of
developments, including the places of public assembly,
places of public utility and services, civic buildings
etc. It was held that if the land is allotted or sold to
the banks by the Corporation, it cannot be said that it
was beyond the scope of public purpose. It was also held
that the very fact that, even the sale of the reserved
land is made permissible under section 40(3)(jj) of the
Act, goes to show that it was not necessary that the
Municipal Corporation should put the land to any use by
itself and that it cannot let or sell the land to any
other body for public purposes. It was held that the
services rendered by the respondents No. 3 to 6 were
public utility services and were within the scope of
public purposes for which the land was reserved. All the
contentions raised by the petitioners were, therefore,
negatived and the petition was dismissed, which decision
has been challenged in the Letters Patent Appeal.
7. It has been contended before us on behalf of the
appellants of Letters Patent Appeal No. 576 of 1999 and
the petitioners of Special Civil Application No. 10744
of 1993 that, the land reserved for purposes mentioned in
clause (e) of section 40(3) of the Act cannot be disposed
of, nor can it be leased to any other authority and it
was required to be used by the appropriate authority
itself, which in the present case was the Municipal
Corporation. It is only the land which was reserved
under clause (jj) of section 40(3), that can be sold and
since clause (jj) came into force in 1986 after the Town
Planning Scheme was finalized, there was no question of
the Municipal Corporation being empowered to sell it or
give it on lease. It was also contended that particulars
of public purpose were required to be mentioned while
reserving the plot for a public purpose in the scheme and
that the expression `sub-center' being a vague
expression, there was no reservation made for any
particular purpose, as was required to be done under
clause (e) of section 40(3). It was contended that the
use for public purpose should be indicated in view of
section 40(3)(e) and 44(b) of the Act, because, otherwise
there would be no proper opportunity to the public to
raise objections under section 47 against any vague
expression like `sub-center'. It was argued that public
of the area is entitled to know for what purpose the land
is reserved, the kind of purpose should be stated and the
proposition that one public purpose is as good as the
other is not warranted by the provisions of the Act. It
was further contended that section 52(1)(i) of the Act
shows that there was a dichotomy maintained between
public purpose and the purposes of appropriate authority
and therefore, change between public purpose and public
purpose of appropriate authority will amount to a
variation for which the procedure laid down under section
70 or 71 for variation, would be required to be followed.
It was then contended that the plot was reserved for the
appropriate authority only and therefore, it cannot be
used by any other authority. The counsel further argued
that vesting in the appropriate authority of the land
under section 67(a) was for a purpose and the appropriate
authority did not become an absolute owner so as to
become entitled to deal with the property in any manner
that it liked. It was also argued that the Telecom
Centre, Bank or office of the I.O.C. would not be
"sub-center". It was contended that the
Telecommunication Department operates throughout the
country and not in a sub-center. It was also contended
that the respondent Municipal Corporation has profiteered
by the transaction in respect of the land reserved for
sub-center. The counsel for the petitioner - Trust
contended further that the petitioner being a public
trust can also use the land for a public purpose, and
therefore, it should be restored to the Trust.
7.1 Reliance is placed by the learned counsel
appearing for the original petitioners on the following
decisions:-
[a] The decision in The Fruit & Vegetable Merchants
Union v. The Delhi Improvement Trust, reported
in AIR 1957 SC 344 is cited in support of the
contention that the land which was required by
the appropriate authority vested in the
Corporation only for a limited purpose. In the
case before the Supreme Court, by an agreement
between the Secretary of State for India in
Council and the Delhi Improvement Trust, a
certain area of Nazul land belonging to the
Government was placed at the disposal of the
Trust for `orderly expansion of Delhi under the
supervision of a single authority'. The question
that had arisen was, whether the land together
with the market was government property to which
the provisions of the Delhi and Ajmer Rent
Control Act were not applicable. It was held
that, on construction of the agreement that the
title to land on which the market stood was not
conveyed by the government to the trust, and that
the words `the trust shall hold and manage the
said Nazul Estate on behalf of the Government"
could not be construed as transferring title to
the Nazul land from Government to the Trust.
They amounted to constituting the trust as an
agent of the Government to hold possession of the
property and to manage the same for the purpose
for which the trust was created. The Supreme
court observed that the word `vest' has not got a
fixed connotation so as to mean that in all cases
the property is owned by the person or the
authority in whom it vests. It may vest in
title, or it may vest in possession, or it may
vest in a limited sense, as indicated in the
context in which it may have been used in a
particular piece of legislation. It may be noted
that the Supreme Court categorically observed
that, in the cases contemplated by sections 16
and 17 of the Land Acquisition Act, the property
acquired becomes the property of the Government
without any conditions or limitations either as
to title or possession, and that the legislature
has made it clear that the vesting of the
property is not for any limited purpose or
limited duration.
[b] The decision in Dr. G.N.Khajuria v. Delhi
Development Authority, reported in AIR 1996 SC
253 was cited to point out that, in a case where
the land was allotted for a park, it was held
that it was not open to the Delhi Development
Authority to carve out a portion from the park
for running a nursery school. The Supreme court
therefore cancelled the allotment in favour of
the school giving time to run the school for a
period of six months to enable it to make
alternative arrangements.
8. The learned counsel appearing for the respondents
argued that the user of the plots in question in these
areas was designated for "sub-center" which was a public
purpose, because, in sub-centers, the activities which
are to be carried out are meant for achieving public
purposes. It was argued that the town planning schemes
were never challenged by any of these parties and they
became final and it was not open for these petitioners
now to question the Schemes on the ground that the
expression `sub-center' used for the purpose of reserving
the land for public purposes was vague, and that they did
not understand it. It was contended that expression
`sub-center' was well known in the realm of town planning
and it covers various activities including the public
utility services, government offices etc. in the
sub-center in which commercial activities are carried
out. It was strongly contended that the title of the
original owners in the lands in question was lost and
these lands reserved for "sub-center" vested absolutely
in the appropriate authority, which in the present case
was the Municipal Corporation, free from all encumbrances
and the statutory body could deal with such lands for
achieving the public purposes in a manner as it may find
to be appropriate. It was contended that all activities
cannot be carried out by the Corporation itself, and that
what was important was the public purpose for which the
land was put to use, and not that the Corporation shall
itself put it to such use. The Municipal Corporation may
itself put the land to such use or may cause it to be so
put. All the activities involving public purposes are
not performed by the Corporation itself and there are
innumerable other authorities which carried out
activities which are in public interest and provide for
public conveniences. It was argued that "sub-center" can
be used for telephone exchanges, banks and other public
utility and services, offices etc. for the convenience
of the public of the area. Reliance was placed on the
guidelines issued by the Centre for Research,
Documentation & Training, Institute of Town Planners,
India published by the Ministry of Urban Affairs &
Employment, Government of India, New Delhi to indicate
the variety of activities which can be carried out in
commercial centers or sub-centers. It was also argued
that the expression `sub-center' will get colour from the
context of the town planning scheme and that as per the
Regulations, construction activities contemplated in
residential zones would include development activity of
establishing banks also. It was contended that large
amounts were already paid by these statutory bodies to
the Municipal Corporation and that this litigation has
thwarted the progress of the work which was intended to
be done for achieving the public purposes for which the
lands were reserved in the town planning scheme.
8.1 The learned counsel for the respondents relied on
the following decisions :-
[a] The decision in Netaji Bag v. The State of West
Bengal, reported in J.T. 200 (Suppl.1) SC 181
was cited for the proposition that, in absence of
statutory restriction, the action of the State of
transferring its property by way of sale or lease
is to be tested on the touch-stone of public
interest or public purpose. It was held that,
when State action is challenged, the initial
burden of showing prima facie existence of
violation of constitutional mandate is on the
person challenging the action. The Supreme Court
held that the Constitutional Courts cannot be
expected to presume the alleged irregularities,
illegalities or unconstitutionality nor the
courts can substitute their opinion for the
bonafide opinion of the State executive. The
Courts are not concerned with the ultimate
decision but only with the fairness of the
decision-making process. On the facts of the
case, it was found that the appellants had
miserably failed to place on record or to point
out any alleged constitutional vice or
illegality.
[b] The decision in Forward Construction Co. v.
Prabhat Mandal (Regd.), Andheri, reported in AIR
1996 SC 391 was referred with a view to point out
that it is only when the user was to be
completely or substantially changed, a prior
modification of the development plan would be
necessary, and that the general meaning of the
word `change' is `to make or become different, to
transform or convert'. As held by the Supreme
court, in that case, where the plot was
sanctioned for building a bus depot was used for
a bus depot combined with a commercial use to
augment the income of the Corporation for public
purpose, the user of the plot could not be said
to have been changed.
[c] The decision in Shri Chandragauda Ramgonda Patil
v. The State of Maharashtra, reported in J.T.
1996 (9) SC 258 was cited to point out that the
Supreme Court in a case where the town planning
scheme was approved for acquiring the land for
utilization thereof for the stated scheme, and
after utilization of land, surplus land was
sought to be used for allotment to some of the
councilors and the employees of the Kolhapur
Municipality, held, repelling the claim for the
land being restituted to the owner that, "We do
not think that this Court would be justified in
making direction for restitution of the land to
the erstwhile owners when the land was taken way
back and vested in the Municipality free from all
encumbrances. ............. It is axiomatic
that the land acquired for a public purpose would
be utilized for any other public purpose, though
use of it was intended for the original public
purpose. It is not intended that any land which
remain unutilised, should be restituted to the
erstwhile owner to whom adequate compensation was
paid according to the market value as on the date
of the notification."
[d] The decision in Union of India v. Jaswant Rai
Kochhar, reported in J.T. 1996 (3) SC 671 was
cited for the proposition that the land sought to
be acquired for public purpose may be used for
another public purpose. The Supreme Court held
that when the notification has mentioned that the
land is sought to be acquired for housing scheme
but it is sought to be used for District Centre,
the public purpose does not cease to be public
purpose.
[e] The decision in The Jalgaon Municipal Council v.
M.N.Venkatachaliah, reported in J.T. 1991 (1) SC
605 was cited to point out that if construction
of commercial building on municipal land is done
under an agreement by developer who financed and
executed the project, that was not impermissible
or arbitrary. It was held that in the ever
increasing tempo of urban life, wide range of
policy options not inconsistent with the
objective of the statute are permissible.
[f] The decision in C. Padma v. Deputy Secretary to
the Government of Tamil Nadu, reported in (1997)
2 SCC 627 was cited for the proposition that,
where the lands are acquired and have vested in
the State under the Land Acquisition Act, the
claimants were not entitled to restitution of
possession on the ground that original public
purpose had ceased to be in operation or that the
land could not be used for any other purpose.
[g] The decision in State of Gujarat v. Shantilal
Mangaldas, reported in AIR 1969 SC 634 was cited
for the proposition that, under section 53 of the
Bombay Town Planning Act, 1954, it was expressly
provided that, on the coming into force of the
scheme, the lands required for public purpose
shall, unless it is otherwise determined in such
scheme, vest absolutely in the local authority
free from all encumbrances and that the clause
contemplated transfer of ownership from private
owners to the local authority. The Act was
therefore a law for compulsory acquisition of
land.
[h] The decision in Rudradhar R. Trivedi v. State
of Maharashtra, reported in AIR 1996 SC 3457, was
referred to for the proposition that it is a
settled law that the land acquired for public
purpose can be transferred to another public
purpose. Paramount consideration will be service
of public purpose and the validity of acquisition
cannot be assailed on the ground of such
transfer.
[i] The decision in Mayank Rastogi v. V.K. Bansal,
reported in AIR 1998 SC 716 was cited to point
out that the Supreme Court in a case where plot
earlier earmarked as open space was used for
construction of a residential house, held that,
merely because at an earlier point of time when
the respondent had constructed his house, the
plot had been sold as an open space, it cannot
give a right to the respondent to ask the High
Court to prevent the construction on that area
when the respondent had chosen not to challenge
the change in the land use from open space to a
residential as per the approved plan.
[j] The decision of this Court in Kashiben wd/o
Pitamber Devchand v. State of Gujarat, reported
in Vol. XXX(2) GLR 1176 was cited for the
proposition that once a final scheme is prepared,
it is deemed to be a part of the Act and the
original owner loses all rights over the land and
has no locus standi to maintain a petition. In
that case, the original purpose for which the
development plan was submitted was that the land
was reserved for a playground for a school, while
later it was used for the purpose of cottage
industries. The Court negatived the contention
that since it was not the function of the
Municipal Corporation to have cottage industries,
the acquisition under the Town Planning Scheme
for cottage industries cannot be sustained. It
was noted that, under section 40 (3) (e) of the
Act, a Town Planning Scheme may make provision
for public purposes of all kind and held that,
having regard to the purpose for which the plot
was intended, it cannot be said that there was no
public purpose involved in it.
9. City planning is globally recognised as a normal
and identifiable function of the government. As a
government function, it involves the coordination of all
governmental activities that bear upon community growth
and developmental change. The ultimate goals of modern
urban planning have always been social with deep
involvement with intermediate economic objectives. The
physically oriented urban planning has the following
environmental objectives :
(i) The orderly arrangement of parts of the city
residential, business, industrial - so that each
part could perform its functions with minimum
cost and conflict;
(ii) An efficient system of circulation within the
city and to the outside world, using to the
maximum advantage all modes of transportation;
(iii) The development of each part of the city to
optimum standards, in terms of lot size,
sunlight, and green space in residential areas,
and parking and building spacing in business
areas;
(iv) The provision of safe, sanitary, and comfortable
housing in a variety of dwelling types to meet
the needs of all families;
(v) The provision of recreation, schools, and other
community services of adequate size, location,
and quality;
(vi) The provision of adequate and economical water
supply, sewerage, utilities, and public services.
For these purposes, devolution of powers to the
cities occurs through legislative acts that delegate
limited self-government to local corporations. By the
Constitution (Seventy - Fourth) Amendment Act, 1992,
Parts IX & IXA were introduced in the Constitution of
India entrusting the planning function to the local
bodies. Article 243-W enables legislature of a State to
endow Municipalities with such powers and authority as
may be necessary to enable them to function as
institutions of self-government with respect to;
(i) preparation of plans for economic development and
social justice;
(ii) the performance of functions and the
implementation of schemes as may be entrusted to
them including those in relation to the matters
listed in the Twelfth Schedule. (These include,
(i) Urban Planning including town planning, (ii)
Regulation of land use and construction of
buildings (iii) Planning for economic and social
development, and (iv) Public amenities and public
conveniences and other items mentioned in the
Schedule.)
10. The Bombay Town Planning Act, 1954 was enacted to
consolidate and amend the law for the making and
execution of town planning schemes enjoining a duty on
every local authority to prepare a development plan for
the entire area within its jurisdiction. This Act was
repealed by the Gujarat Town Planning & Urban Development
Act, 1976 with a saving provision in section 124 thereof.
It was felt that if planning activities were undertaken
on a more rational and scientific basis with reference to
development of areas which are not necessarily restricted
to the areas within the jurisdiction of local
authorities, it will be possible to create better
environmental conditions. Therefore, the Act of 1954 was
replaced by a more comprehensive legislation.
10.1 Section 18 of the Act of 1954 and section 40 of
the Act of 1976 provided for making and contents of a
town planning scheme. Under section 40(3)(e) of the Act
of 1976, the town planning scheme made by the appropriate
authority may, inter alia, provide for "the allotment or
reservation of land for roads, open spaces, gardens,
recreation ground, schools, markets, green belts,
dairies, transport facilities, public purposes of all
kinds". Identical provision existed in section 18(2)(e)
of the Act of 1954. Section 18(2)(c) of the Act of 1954
provided that a town planning scheme may make provision
for "lay out of new streets or roads; construction,
diversion, extension, alteration, improvement and
stopping up of streets, roads and communications".
Similar provision is contained in section 40(3)(c) of the
Act of 1976. The appropriate authority (defined in
section 2(iii) of the Act of 1976), is required by
section 42 to make and publish draft scheme which as per
section 44(b) (corresponding to provision of section
25(b) of the Repealed Act) was required to contain
particulars of land allotted or reserved under clause (e)
of section 40(3) with a general indication of the uses to
which such land is to be put and the terms and conditions
for such uses. Developmental activities were restricted
by section 49 after the declaration of a scheme.
However, it will be significant to note that under
sub-section (4) of section 49, the restrictive provisions
of section 49 were not to apply to any "operational
construction" [which included any construction necessary
for posts and telegraphs, telephones, wireless,
broadcasting and other like forms of communications, as
defined in section 2 (xvii)], undertaken by the Central
Government or a State Government.
10.2 In the preliminary scheme, the town planning
officer shall under section 52(1) define and demarcate
the areas allotted to, or reserved for, any public
purpose, or for a purpose of the appropriate authority
and the final plots. In the final scheme, the town
planning officer shall under section 52(3), inter alia,
determine whether the area used, allotted or reserved for
a public purpose or purposes of appropriate authorities
are beneficial wholly or partly to the owners or
residents within the area of the Scheme, and calculate
the contribution to be levied under section 79(1) of the
Act.
11. On the strength of the above provisions of
section 40(3)(e), 44(b) and 52, the main thrust of the
argument for the petitioners was that the expression
`sub-center' did not indicate any use for a public
purpose, nor its kind and that, even if the plot is
allotted for a sub-center to the appropriate authority,
it is required to be used only by that authority for its
statutory functions and for no other purpose, nor by any
other authority, be it a Nationalised Bank or
Telecommunication Department of the Central Government.
12. The appropriate authority makes a town planning
scheme and in doing so, it is required to make provision
for any of the matters enumerated in section 40(3)(a) to
(l) and for such other matters, not inconsistent with the
object of the Act, as may be prescribed. The words
`allotment' and `reservation' occurring in section
40(3)(e) have different connotations. In allotment of
land, the land is allotted i.e. given or apportioned for
the task while reservation of land would mean the act or
instance by which the land is put aside or kept back for
a later occasion or special use. Thus, when the land is
allotted for roads, open spaces, gardens etc., it would
reflect that the land is already apportioned for the
purpose for which it is to be used. The decision to give
or apportion land for any of the purposes mentioned in
clause (e) can be taken on the basis of existing needs,
while the decision to reserve the land for such purposes
would depend on variety of factors which would include
the possible future requirements, the environmental
changes, the technological advances, the economic
activities, social and cultural milieu.
12.1 The objectives underlying town planning get new
insights from experience, research and technological
achievements. Inherent in the concept of city planning
is the recognition that an ideal is not a fixed objective
but will itself change, that the ideal city can be
striven toward but never achieved. The focus of planning
has to turn towards a stress upon the process and
direction of change. The interest of the owner and
developer of raw land is purely financial and temporary,
while the urban community must live with the results for
generations afterward; and the city planning would aim
not at any single problem but at the continuous
improvement of all aspects of the urban physical
environment through unified planning of the whole
development area. The process of city planning has a
cultural as well as a utilitarian value. The factors of
city living must be considered as a whole so that the
improvement is brought about in the urban environment
which would give the city dweller maximum amenity.
12.2 When town planning is expected to take care of
changes over a period of time, there is greater need to
vest the appropriate authority to reserve land for public
purposes of all kinds. Thus, under section 40(3)(e) of
the Act, land can be reserved for a public purpose of any
kind for which it may be needed in future for the
continuous process of developmental changes that may take
place in the area covered under the town planning scheme.
It would be retrograde to suggest that only land required
to be allotted i.e. given or apportioned for the
specifically named public purposes can be used for such
public purpose and no land can be reserved i.e. kept
back or put aside for a variety of public purposes for
which it may be required in future by passage of time for
a better planning of the city. Such interpretation will
destroy the operational efficacy of section 40(3)(e)
which is designed to enable the appropriate authority to
make provision to reserve land for all kinds of public
purposes for which it may be required even after the
scheme comes into force.
13. The services now provided by city governments are
different in nature and wider in scope than in the past.
The traditional services have been transformed beyond
recognition. Public utility services are frequently
provided by municipal governments which can do much to
assist industry and commerce by good planning and
physical development and provide convenient and agreeable
services. As municipal functions grow in scope and
personnel, there arises need for central location and
arrangement. The size of the city served determines the
range and number of municipal services required, which,
in turn, determine the size of the site. The programme
for civic centers in a large city will include not only a
City Hall, headquarters for police, fire and welfare
departments, court rooms, post office, the central
library, but also public utility offices, public health
facilities and office space for the municipal, State and
Central Governments as well. It is also desirable to
include open space in the plan. There should be an
architecturally and spatially well planned civic centers.
Public utility enterprises which are generally State
-owned and State-operated, provide certain classes of
services to the public including common carrier
transportation, telephone and telegraph, power and light,
and community facilities for water, sanitation and
similar services. Through the introduction of the
machine and mass production, economic life has moved out
of domestic environment in an area dominated by devices
and processes rather than by individuals, creating the
need for more specialized types of buildings for offices,
stores, markets, banks, warehouses, exhibition halls,
and, structures for transmission and reception of
telephone, telegraph, radio, television radar
communication, for printing, for factories, laboratories,
food processing, distribution, installation and so on.
The change in needs have to reflect in the wider range of
matters covered by section 40(3)(e) for which the
appropriate authority, whose functions are to be viewed
in the above constitutional perspective, may make
provisions in the town planning scheme not only to meet
with the present requirements but also to answer the
future needs. There can therefore be a valid
reservation, of a particular land, made in the town
planning scheme for public purposes for which it is
likely to be needed in future. There is no substance in
the contention that the reservation of the plots in
question in these two town planning schemes for the
public purpose of "sub-center" would not include the
public purpose for which the plots are now being put to
use, namely for telephone exchange or offices of the
nationalised banks or the Indian Oil Corporation.
14. The word `sub-center' is to be understood in
context of civil centers which can be effectively located
at the population centre, geographic center, or the
business centre of the locality. It is a grouping of
facilities for the convenience of the public. In the
Guidelines published by Centre for Research,
Documentation & Training, Institute of Town Planners,
India published by the Ministry of Urban Affairs &
Employment, Government of India in August 1996, while
suggesting "Norms & Standards" in Appendix `B' for urban
development plans under the head "Commercial Activity
(B.4.00 at page 152) hierarchy of commercial centres is
described as "a function of the hierarchy of planning
units in an urban centre". Thus, a community planning
unit will have a community centre, a district planning
unit a district centre, sub-city planning unit a sub-city
centre, and, a city planning unit a city centre. The
chart of 24 activities which can be provided in the
commercial centre is given in para B.4.40 at page 153 of
the said official publication. These include commercial
offices, service industries, local government offices,
telephone exchange, post & telegraph, petrol pump and
conveniences. A sub-center is thus a point or an area in
a city which has a group of buildings for any or more of
these activities. To provide for land for such
activities by allotment or by reservation is within the
domain of the appropriate authority under section
40(3)(e) of the Act when these constitute any of the
objects named or any kind of public purpose. In fact,
when the land is needed for the purposes of a town
planning scheme, it is deemed to be needed for a public
purpose, because, town planning is itself a public
purpose. When the land is put aside or kept back for
public purpose that may be spelt out at a later occasion,
then the appropriate authority will be able to put it to
use as and when the need arises for any kind of public
purpose. Therefore, land reserved for `sub-centre'
without specifying any particular public purpose could be
validly used for providing commercial offices, such as
banks, telephone exchanges and other public utility
offices and conveniences in the process of implementing
the town planning scheme. This gives an amount of
flexibility to the scheme to answer the ever increasing
needs of the society. There is a built in mechanism in
section 40(3)(e) to enable the appropriate authority to
set apart land for all kinds of public purposes which can
be spelt out by passage of time, as has been done in
these two schemes by reserving the plots in question
under the head "sub-center" which is well understood in
the field of town planning and embraces activities of
varying nature in a commercial centre. Therefore, there
does not arise any question of variation or change in the
scheme when the lands earmarked for `sub-center' are used
for any of the activities to be provided in a commercial
centre. There is no element of arbitrariness involved
when the lands reserved for `sub-centre' are put to such
use and the challenge on the ground of violation of
Article 14 must fail.
15. To suggest that the appropriate authority which
makes the town planning scheme which provides for the
allotment or reservation of land for purposes mentioned
in section 40(3)(e) which included public purposes of all
kinds should itself utilise the land and that it cannot
be utilized by any other agency to which the appropriate
authority entrusts the development for the purpose of
implementing the town planning scheme, would result in
stultifying this provision. It is an unfortunate aspect
of inner urban planning that the cities that have the
means to build a civic centre frequently lack the
necessary space, and the cities that have enough space,
often lack the proper funds. This is why, under section
23(1), the powers and functions of urban development
authority include the power to enter into contracts,
agreements or arrangements with any local authority,
person or organisation, as it may consider necessary for
performing its functions. Thus, its functions of
executing the works named or of providing other services
and amenities under clause (a) of section 23(1) can be
performed by any local authority, person or organisation
by resorting to clause (viii) of section 23(1) of the
Act. The urban authority or its delegate which is
appropriate authority can acquire, hold, manage and
dispose of property as it may deem necessary, under
section 23(1)(vii) of the Act. It would therefore be
naive to suggest that the appropriate authority cannot
entrust the developmental work of any plot which is
reserved for public purpose to anyone else and should
itself do it.
16. The lands which are required by the appropriate
authority, unless it is otherwise determined in the
scheme, vest absolutely in the appropriate authority free
from all encumbrances. The lands required for any public
purpose or for a purpose of the appropriate authority
will all vest absolutely in the appropriate authority
under section 67(a), on the day the preliminary scheme
comes into force. All rights in the original plots which
are reconstituted come to an end as provided in section
67(b). There is absolutely no scope for restoring the
lands vesting in the appropriate authority to the
original owners whose rights are determined. The event
is irreversible and no such land can be traced by the
original owner in the hands of the appropriate authority
which alone can deal with it in exercise of its powers
and functions under section 23 of the Act. Even when the
appropriate authority is dissolved by a notification
issued by the State Government under section 120 of the
Act, all properties which are vested in the appropriate
authority shall vest in the State Government, as provided
in sub-section (2) of section 120. The appellants and
the petitioners would be nowhere in picture to pitch any
claim even if the land is not actually put to use or is
used through some other agency under an arrangement or
contract with the appropriate authority for creating a
sub-center for any such activity as of establishing
commercial offices, telephone exchange, banks, or,
providing other conveniences which can be provided in a
commercial center. The contention that the proprietary
rights of the petitioners are violated is therefore
wholly misconceived.
17. Thus, not only the appropriate authority could
have itself put to use the land earmarked for the public
purpose of a "sub-centre" involving any of the activities
which may be provided in a commercial centre, but it
could legitimately cause the same to be used by other
authorities for such activities, which include commercial
offices, telephone exchange or other public utility
offices. The appellants and the petitioners of these two
cases have no right to insist that the local authority
should itself put the lands in question to such use or
that they cannot be given for such use to the
Telecommunication Department, the Banks, or the Indian
Oil Corporation. They also do not have any right to
claim these lands on any ground whatsoever, and they must
therefore fail.
18. The appellant trust has prayed for dereservation
and restoration of land which vested in the appropriate
authority, and the power of attorney holder of the
petitioners of Special Civil Application No. 10744 of
1993 empowered its holder to get the land dereserved by
fling litigation, though there was no statutory provision
to dereserve the lands which have vested in the
appropriate authority under the Act and the town planning
schemes were never challenged by these parties. These
litigations are therefore purely speculative and have
resulted in delaying the use of the lands in furtherance
of the schemes. The appellants and the petitioners of
these two cases must therefore bear the cost of such
frivolous litigation, which is quantified at Rs.10,000=00
to be paid by the appellant of the Letters Patent Appeal
and Rs.10,000=00 to be paid by the petitioners of Special
Civil Application, to the respondent - Municipal
Corporation in each case.
19. The Letters Patent Appeal is accordingly
dismissed. The Special Civil Application is also
rejected. The appellant and the petitioners in these two
cases shall pay the costs of the proceedings to the
respondent
the parties will bear their own costs. Interim relief
stands vacated in both the cases.
MARCH 27, 2001 [ R.K.ABICHANDANI, J. ]
[ M.C.PATEL, J. ]
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