Gujarat High Court
Judgename :Akil Kureshi
BHIKHUBHAI VITTHALBHAI PATEL - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 12001 of 2004
Decided On : 08/11/2005
Civil Law – Gujarat town Planning and Urban Development Act, 1976 – Sections 16, 17 (1) (a) and 21 – Constitution of India, 1950 – Article 14 – Town Planning Scheme – Notification – Petitioners in these petitions are owning different parcels of lands in the above mentioned villages in the vicinity – Surat Urban Development authority-SUDA submitted a draft development plan to State Government under section 16 of Act, 1976 wherein proposals for reservation and designation for different areas were recommended by the SUDA – Lands with which present petitions are concerned, they were proposed to be designated for residential use – State Government issued a preliminary notification under section 17 (1) (a) of said Act inviting objections and suggestions proposing to provide for reservations of lands in question for Education Complex of South Gujarat University – Petitioners contended that once this High Court and honble Supreme have struck down action of government in re-reserving lands in question for the purpose of Education Complex of South Gujarat University, it is not open for the State Government to once again designate the land in question for Educational Use – It is contended that the action of the Government in case of the present petitioners therefore amounts to hostile discrimination violative of Article 14 of Constitution – Held, Except the noting of the Honble Minister suggesting change of user of the land from that of residential zone to education zone, there is absolutely no material on record on the basis of which such a decision could have been arrived at – Discretion howsoever wide has to be exercised within the four corners of law and has to be exercised upon consideration of relevant factors – Exercise of discretion which is based on extraneous consideration or which is based on non-consideration of any material would equally be irrational and arbitrary – To repeat, on going through the entire files, there is absolutely no material available on the files which prompted the Government to provide for a specific zone. Subsequent exercise of calling for objections and suggestions and having considered all such objections and suggestions would not in any way save otherwise illegal exercise – Even after issuing of the preliminary notification, except for considering the suggestions and objections, there is no material on record which would even otherwise augment the view of the Government – Therefore Notification is illegal and unlawful and is therefore required to be and is hereby quashed and set aside – Petitions allowed. (Paras 31 and 32)
( 1 ). Since factual and legal controversies arising in these petitions are common, both these petitions have been heard together and are being disposed of by this common judgment.
( 2 ) IN an order dated 24th February 2005, learned single judge of this Court had recorded that the matter will be heard finally on the next date i. e. 23rd March 2005 or any other subsequent date. Accordingly, these petitions were argued before me at considerable length by the learned advocates appearing for the parties.
( 3 ) IN these petitions, the petitioners who are the land owners of land situated at village Barthana-Vesu which is in the vicinity of Surat City have challenged the action of the government designating their lands for educational use.
( 4 ) FACTS in brief, which are not in dispute can be noted at the outset. The petitioners in these petitions are owning different parcels of lands in the above mentioned villages in the vicinity of Surat City. On 4. 8. 81, Surat Urban Development authority (SUDA for short) submitted a draft development plan to the State Government under section 16 of the Gujarat town Planning and Urban Development Act, 1976 (hereinafter to be referred to as Sthe said Act) wherein proposals for reservation and designation for different areas were recommended by the SUDA. It is not in dispute that with respect to the lands with which the present petitions are concerned, they were proposed to be designated for residential use. The State Government issued a preliminary notification under section 17 (1) (a) of the said Act inviting objections and suggestions proposing to provide for reservations of the lands in question for SEducation Complex of South Gujarat University. On 31. 1. 86, the State government published a notification under section 17 (1) (c) of the said Act which was a notification for final development plan and the above reservation for Education complex of South Gujarat University came to be indicated as part of the Final Development Plan in the notification dated 31. 1. 86. Pursuant to the said notification as indicated therein, Final Development Plan for the entire area including the present lands came into operation with effect from 3rd March 1986. Since as per the provisions of section 21 of the said Act, the Final Development Plan is required to be revised at least once in ten years from the date when the final development plan comes into operation, the State government, after undertaking an exercise of preparing a revised development plan issued a fresh notification on 29th february 1996 wherein also the lands in question were placed under reservation for Education Complex of South Gujarat university. In the meantime, the petitioners and some other similarly situated land owners of the same area served a notice upon the authorities for acquisition of the lands in question on expiry of a period of ten years from the coming into operation of the initial final development plan. The petitioners called upon the authorities to acquire the land within a period of six months. Since no acquisition was made by the authorities and the lands in question were proposed for re-reservation for the very same purpose of Education complex of South Gujarat University, the present petitioners and some other similarly situated land owners approached this High Court by filing Special Civil Application No. 6519 of 1998 and allied matters. This group of petitions filed by the land owners of Surat along with other petitions filed by the land-owners of Bhavnagar and Vadodara came to be heard together by a Division Bench of this Court. Along with the said group of petitions, the High Court also took up for hearing petitions filed by the rival group of petitioners who were supporting such continuation of re-reservation of the lands for the said purpose. Before the Division Bench, the petitioners contended that upon completion of a period of 10 years from the date of the final development plan having come into
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