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Gujarat High Court
Judgename :A.R.Dave, D.M.Dharmadhikari
AHMEDABAD GREEN BELT KHEDUT MANDAL - Appellant
Versus
STATE - Respondent
S.C.A.4271 of 2000
Decided On : 11/24/2000
(a) Constitution of India, 1950 - State list - List II, Entry 18 - List III, Entry 20 - Bombay Town Planning Act, 1954 - Gujarat Town Planning & Urban Development Act, 1976 (PA 27 of 1976) - Gujarat Town Planning and Urban Development Act, 1999 - Insertion of clause in Sec. 40, Sec. 40(3)(JJ) - Competency of State to legislate the matter - When items falls in concurrent list and State is not competent to legislate in the matter - Held, no merit in contention that impugned legislation beyond legislative competence of State legislature.
The arguments advanced on behalf of the petitioner is that the substitution of word otherwise in Sec. 91(1)(a) should be interpreted in the light of other words used in Clause (a). Court does not find any basis to hold that in Clause (a) the sale proceeds obtained by the authority from sale of land reserved in the scheme, would not be covered by the expression moneys received through source other than grant, loans, advances, fees and development charges. The word otherwise has been purposely introduced in Clause (a) to cover all kinds of moneys which the Appropriate Authority might receive. The word otherwise in Clause (a) has to be read in the light of other provisions of the Act including provision contained in Sub-clause (iv) of Clause (jj)(a).
[Para 20]
For all the above reasons, Court find no merit in the contention advanced on behalf of the petitioner that the impugned legislation is beyond legislative competence of the State Legislature.
[Para 21]
(b) Constitution of India, 1950 - Arts. 14 & 300-A - Gujarat Town Planning & Urban Development Act, 1976 (PA 27 of 1976) - Gujarat Town Planning & Urban Development Act, 1999 - Insertion of provision (JJ) to Sub-sec. (3) of Sec. 40 - Provision is arbitrary and unreasonable, being contrary to provisions of Arts. 14 & 300-A of Constitution - Held, the provisions of present Act cannot be held to be arbitrary or unreasonable or violative of Art. 300-A.
The provision of town planning scheme provide a different mode of determination and payment of compensation because the process involved in preparation of a scheme requires amalgamation and or reconstitution of plots resulting into appreciation of the value of some of the plots. Court, therefore, hold that merely because, compensation payable for the land is not in accordance with the Land Acquisition Act but only in accordance with the provisions of the Parent Act, the provisions of the latter of Act cannot be held to be arbitrary, or unreasonable or violative of Art. 300A of the Constitution.
[Para 29]
The impugned legislation contained in Clause (jj)(a) of Sub-sec. (3) of Sec. 40 is a valid piece of legislation and the challenge to the same by the petitioners based on Art. 14 and Art. 300-A of the Constitution fails.
[Para 39]
(c) Gujarat Town Planning & Urban Development Act, 1976 - Secs. 20, 40 & 12(2) - Gujarat Town Planning & Urban Development Act, 1999 - Sec. 40(3)(JJ) - Acquisition of land - Without payment of compensation - Compensation not from date of acquisition but from date of proposal - Payment to be as per market rate - Provision of Sec. 20 and Sec. 40(3)(JJ) are contradictory - Secs. 20 & 40 Interpretation - Held, Clause 40(3)(JJ)(a) is valid piece of legislation and operate in field other than provided under Sec. 20 of Parent Act.
These provisions are a pointer to the legislative intent that lands, other than those liable to be included in the scheme, and for which compensation is payable under the Scheme in accordance with Sec. 82 read with Secs. 41 & 43 of the Act, may be acquired for a development plan or town planning scheme, but, only in accordance with the Land Acquisition Act.
[Para 35]
This is Courts conclusion on the interpretation of Secs. 20 & 40. It is supportable on the over all scheme of the Parent Act and the various chapters and sections discussed above. But this interpretation, as placed by us, on the provisions of the Act, does not in any manner, render Clause (jj)(a) of Sub-sec. (3) of Sec. 40 an invalid piece of legislation. Clause (jj)(a) mentioned above can validly operate in respect of land not covered by Sec. 20(2) of the Parent Act.
[Para 36]
The petitions partly succeed on the interpretation of the provisions of Sec. 40 read with Sec. 20 of the Act. The contention advanced on behalf of the petitioners is accepted that the impugned Clause (jj)(a) of Sub-sec. (3) of Sec. 40 is operative for the land other than the land mentioned in Sub-sec. (2) of Sec. 20 of the Act.
[Para 39]
(d) Constitution of India, 1950 - Arts. 14 & 300-A - Gujarat Town Planning & Urban Development Act, 1999 - Sec. 40(3)(JJ)(a)(iv) - Power of competent authoirty under the Act to reserve 15% of land for sale for residential, commercial industrial purpose - Provision for implementation of town planning scheme - Provision inserted is unconstitutional, unreasonable - Held, provision for preparation and implementation of Town Planning Scheme, hence contention rejected.
The reservation of 15% of land to be utilised for sale by the Authority is not for only raising Revenue or fund of the Authority. The provision of reservation is to earmark a certain percentage of land for public facilities to be provided to the residents living within the area of the Town Planning Scheme. This being a provision necessary for Town Planning, we are not prepared to accept the argument that the provision is merely a money making provision and beyond the legislative competence of the State Legislature. The provision of reservation of land in a reasonable limit to for utilisation by sale by the authority for providing infrastructural facilities, is a subsidiary or ancillary provision necessary for preparation and implementation of a Town Planning Scheme and does not suffer from any constitutional infirmity or lack of legislative competence. The challenge therefore of Para (iv) or Sub-clause (iv) of Clause (jj)(a) also therefore fails.
[Para 38]
( 1 ) ). THIS petition under Art. 226 of the constitution had been preferred by an Association of Land Owners within the development area of Ahmedabad Development Authority. This petition shall also decide the group of other petitions mentioned above as common questions of law arise for decision.
( 2 ) ). The petitioners challenge the constitutional validity of the provisions of Sec. 12 of the Gujarat Town Planning and Urban Development (Amendment) act, 1999 (Gujarat Act No. II of 1999), whereby amongst other provisions, amendment has been introduced by substituting impugned clause (jj) in sub- sec. (3) of Sec. 40 of the Parent Act, i. e. . The Gujarat Town Planning and urban Development Act, 1976 (hereinafter referred to shortly as the Parent act and the amendment Act respectively ). The Parent Act of 1976 in the state of Gujarat is successor to the Bombay Town Planning Act of 1954 which was applicable to the new State of Gujarat. The Preamble of the Parent Act indicates, the object of the Act to be one enacted to consolidate and amend the law relating to the making and execution of development plans and Town planning Schemes in the State of Gujarat. It is a State legislation and the source of legislative power is derived from Entry 18 of State List and Entry 20 of the Concurrent List.
( 3 ) ). For appreciating and weighing the worth of grounds urged for challenging the impugned legislation, a brief survey of the provisions of the Parent Act and the Amendment Act would be necessary. The broad features of the Parent act are : Chapter II contains the provisions for creation of larger area of development defined as "development area" and for constitution of area development Authorities for the purpose of development. The main functions of the Area Development Authority under Sec. 7 are amongst others to undertake preparation of development plans for the development Area and for preparation and execution of town Planning Schemes. Section 12 of the Parent Act describe various proposals and reservations to be made in the development plan to be approved by the State Government. Sub-section (2) of Sec. 20 enables reservation of lands for residential, industrial, commercial, agricultural and recreational purposes, land to be reserved for community facilities and services and for other public purposes. Section 20 of the Parent Act which is very material for the purposes of this group of petitions is a provision enabling acquisition of land by the Development Authority for any of the public purposes specifically mentioned in certain clauses of sub-sec. (2) of Sec. 12. The land designated and reserved for public purposes is required to be acquired under an agreement with the land owners or under the provisions of Land Acquisition act. Sub-section (2) of Sec. 20 provides that lands for development can be acquired within 10 years from coming into force of final development plan, or within six months of notice served by the land owner or person interested. Non-acquisition within the stipulated time has the legal effect of dereservation of the land designated for a specific purpose. Section 20 being relevant for considering the merits of the grounds urged in this petition, is required to be reproduced in full :"section 20. Acquisition of land : (1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of sub-sec. (2) of Sec. 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894 (I of 1894 ). (2) If the land referred to in sub-sec. (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894 (I) of 1894, are not commenced within such period, the owner or any person interested in the
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