2008 Supreme(SC) 510

2008(2) Supreme 548
Supreme Court of india
(From Gujarat High Court)
S.H. Kapadia & B. Sudershan Reddy, JJ.
Bhikhubhai Vithlabhai Patel & Ors. — Petitioners
versus
State of Gujarat & Anr. — Respondents
Appeal (civil) 2000 of 2008
(Arising out of SLP(C) No. 9905 of 2007)
Decided on : 14-03-2008

important point
Public orders cannot be construed in the light of explanations subsequently given by the decision making authority.

Headnote:(a)Gujarat Town Planning and Urban Development Act, 1976 – Section 17(1)(a) (ii) – Formation of opinion is a condition precedent for proposing substantial modifications in the draft development plan – Any opinion of the Government to be formed is not subject to objective test, but there must be material based on which alone the State Government could form its opinion – The formation of the opinion by the State Government is with reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. (Paras 21, 22 and 25)

       (b)Gujarat Town Planning and Urban Development Act, 1976 – Section 17(1)(a) (ii) – Formation of opinion – The formation of the opinion by the State Government should reflect intense application of mind with reference to the material available on record that it had become necessary to propose substantial modifications to the draft development plan – The provision does not confer any unlimited discretion on the Government – Instantly, there being no material on record to suggest that the State Government formed any opinion or there was any material before it to do so, the impugned notifications struck down as ultra vires. (Paras 26, 28, 32 and 38)

       1999(5) Supreme 463: AIR 1999 SC 1912: 1999 AIR SCW 1579: (199)5 SCC 138; AIR 1967 SC 295; Income-tax Officer, Calcutta v. Lakhmani Mewal Das – Relied upon.

       (c)Judicial Review – Well settled that public orders cannot be construed in the light of explanations subsequently given by the decision making authority – Public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (Para 35)

       Facts of the case;

       1.Surat Urban Development Authority (SUDA) 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 the appellants’ lands in question were reserved for ‘education complex of South Gujarat University’. The final development plan was accordingly brought into force with effect from March 31, 1986.

       2.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.

       3.The appellants challenged re-reservation of the lands for South Gujarat University on various grounds which ultimately culminated in the judgment of the Supreme Court in Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others wherein the 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 interested therein’ cannot be taken away.

       4.The State Government proposed to designate the land for ‘educational use’. The appellants challenged the action on the part of State Government 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.

       5.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.

       Findings of the Court :

       There is nothing on record to suggest that the State Government formed an opinion, much less on the basis of some material.

       Result : Appeal allowed, notifications struck down as ultra vires.