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2006 Supreme(Guj) 32
Gujarat High Court
Judgename :D.N.PATEL
ISHWARBHAI GANPATBHAI PATEL - Appellant
Versus
STATE OF GJARAT - Respondent
SPECIAL CIVIL APPLICATION 14573 of 2005
Decided On : 01/18/2006
Headnote:Point in Issue :
Draft Development Plan - Reservation - Modification - Revision by Government - And sanction of plan with reservation - Absence of personal hearing - Allegation of breach of principles of natural justice - Sustainability - Finding of.
Head Note :
Gujarat Town Planning and Urban Development Act, 1976 (Guj. Act 27 of 1976) - Section 9, 10, 12 to 17 and 21 - Gujarat Town Planning and Urban Development Rules, 1979 - Rules 3 and 6 - Draft Development Plan - Reservation - Modification - Revision by Government - And sanction of plan with reservation - Absence of personal hearing - Allegation of breach of principles of natural justice - Sustainability - Finding as to - The first notification for sanction of plan was published wherein land in question was proposed to be released from reservation and to be included in the residential Zone - Subsequently considering the objections and suggestion of Municipal Corporation of City of Surat the Government dropped the proposal of release of land from reservation and gave sanction and reservation in the disputed land was continued - Contention that while according sanction Government did not give personal hearing to petitioners or that there had been violation of principles of natural justice has no force and is without substance because under the provisions of the Act there is no obligation on the part of either Area Development Authority or on the part of State Government to give any personal hearing to objectors nor is there any provision for cross exchanges of objections and suggestions between persons who are in favour of modification and who are opposing modification - The only requirement under the provisions of the Act is of consideration of suggestion and objections by the authority - Under the provisions of the Act if the Government accepts substantial modification it can publish a modification and invite objections and suggestions as have been done in the present case - In view of the fact that State Government have followed the procedure prescribed in the Act, therefore, sanction given by State Government to revised draft plan is true, correct and in consonance with the provisions of the Act and Rules framed thereunder - Also when Government has sanctioned the draft development plan with or without reservation it is not for the Court to further evaluate the need for reservation.
Held :
The Act of 1976 has never envisaged exchange of objections and suggestions. The Act, 1976 never envisaged any opportunity of personal hearing to be given to any objector. The Act of 1976 never envisaged to pass any speaking order upon objections (so that its justification can be challenged before the Court). The Act never envisaged that after exchange of objections, further objections are to be accepted. Neither of these is present in the Act, looking to the provisions of Section 17(1)(c) of the Act, (even this is not envisaged under Section 14 of the Act, when objections are to be considered by the Area Development Authority.) The only duty, cast on the State Government, under Section 17 (and upon Area Development Authority under Section 14 of the Act, 1976) is, to consider objections and suggestions. Personal hearing to the objectors, is never contemplated, looking to the provisions of the Act of 1976. [Para 9]
Merely because the State Government has published the proposed modification as per proviso to Section 17(1)(a)(ii) of the Act of 1976, it gives no additional right to the petitioners to receive objections and suggestions, given by the objectors in pursuance of that notification under Section 17 of the Act of 1976. Merely because the proposed modification has been suggested by the Government, no additional right is vested in the petitioners, neither of personal hearing nor of getting copies of objections and suggestions given by other persons. Looking to the scheme of the Act and looking to the aforesaid judgment of this Court, no personal hearing is envisaged and the objections filed by one party are not required to be given to other party even when the proposed modification is published either under Section 15 of the Act, 1976 or under the proviso to Section 17(1)(a)(ii) of the Act of 1976. The modifications are possible at two different stages. One at the hand of the Area Development Authority under Section 15 of the Act and another at the hand of the State Government under the proviso to Section 17(1)(a)(ii) of the Act. In both these eventualities, further objections and suggestions ought to be invited. But that gives no separate or additional right to any of the persons of hearing or of getting copies of suggestions and objections, (filed by others) when any modification is accepted, by the Area Development Authority or when the proposed modification is dropped, by the Area Development Authority or when the proposed modification is accepted by the State Government or when the proposed modification is dropped by the State Government. [Para 9]
When Government sanctions, the draft development plan under Section 17 of the Act of 1976, whether with reservation, or without reservation this Court will not further evaluate the "need" for reservation or dereservation and will not further look, one by one, to all the suggestions and objections. In town planning, matter, especially of reservation, this Court will look only to the fact that whether procedure to impose reservation has been followed or not. Once this decision making process is found correct, the decision of the Government in town planning matter, especially reservation of land for the purposes referred to in Section 12(2)(e) of the Act, 1976, generally will not be upset by the Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. Clause 12(2)(e) is wisely kept out of reach of Section 17(2) as well as out of reach of Section 20 of the Act, 1976. In the facts of the present case, as stated herein above, there is no procedural lapse in decision making process, neither by Area Development Authority nor by State Government. [Para 9]
Law Laid Down :
Personal hearing looking to the provisions of the Act is impliedly ousted.
Case Law Analysis :
Kikabhai Ukabhai Patel & Ors. vs. State of Gujarat & Ors., 1988 (1) GLR [Para 9];; Union of India vs. Deoki Nandan Aggarwal, AIR 1992 SC 96 [Para 9]. Union of India vs. J.N. Sinha, AIR 1971 SC 40 [Para 9].- Relied on
Conclusion :
Personal hearing to objection is never contemplated under the provision of the Act, therefore, sanction accorded to the plan by State Government cannot be held vitiated on that account.
Cases Referred :
Union of India & Anr. vs. Cynamide India Lts. & Anr., AIR 1987 SC 1802, The Bihar School Examination Board vs. Subhas Chandra Sinha & Ors., AIR 1970 SC 1269;; The Scheduled Caste and Weaker Section Welfare Association (Regd.) & Anr. vs. State of Karnataka & Ors., AIR 1991 SC 1117;; Union of India vs. J.N. Sinha, AIR 1971 SC 40;; Kraipak vs. Union of India, AIR 1970 SC 150.
Decided in Favour of :
Respondent
( 2 ) IN both the aforesaid petitions, an important issue has been raised for the adjudication by this Court to the effect that is it obligatory on the part of State government to give, personal hearing to the petitioners while giving sanction, to revised draft development plan under clause (C) of sub-section (1) of section 17 of The gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act, 1976") and that is it obligatory on the part of the State Government to supply copies of objections and suggestions (which are received by the Government) to the petitioner, before finalisation of revised draft development plan, under section 17 (1) (c) of the Act, 1976 "
( 3 ) BRIEF facts come upon surface, involved in the petitions and provisions of the Act, 1976, and the Rules made thereunder, necessary, for adjudication, are as under:in the draft development plan sanctioned by the state, one of the lands in question was reserved for slum clearance. The said development plan was sanctioned by the State Government on 31st January, 1986. Every draft development plan required to be revised at least once in ten years as per section 21 of the Act, 1976, and therefore, the said plan requires revision in the year 1996. In the year 1996, both the lands involved in both the petitions were reserved for sewage treatment plant under section 12 (2) (e) of the Act, 1976. As per section 13 (1) of the Act of 1976, a notification was published inviting suggestions and objections. The petitioners filed their objections and suggestions, against reservation. Thereafter, upon considering suggestions and objections, (under section 14), the reservation was continued and the authority submitted the draft revised development plan, alongwith suggestions and objections, to the State government as per section 16 of the Act of 1976. Thereafter, as per section 17 of the Act of 1976, the State Government considered suggestions and objections and thought it fit as per proviso to section 17 (1) (a) (ii), to publish a notification dated 17th May, 2001, whereby the State Government, instead of remanding draft development plan to Surat urban Development Authority thought it fit to invite suggestions and objections for the proposed modification in the draft revised development plan for the Surat Urban Development Area. Thus, under the proviso to sub-section (ii) of clause (a) of sub-section (1) of section 17 of the Act of 1976, the first notification was published. In this notification, the land in question was proposed to be released from reservation and was proposed to be included in the residential zone. As per section 14 of the Act of 1976, when Area Development Authority (in the present case, it is Surat Urban Development authority), invited suggestions and objections. The petitioners had filed their objections against imposition of reservation, but Surat Urban development Authority thought it fit after considering those objections, not to modify the revised draft development plan or not to deserve the lands in question. Thus, Area Development Authority (SUDA), continued reservation upon lands in question for sewage treatment plant, (as per section 12 (2)e) of the Act of 1976), and, therefore, the draft revised development plan submitted, under section 16 of the Act of 1976, to the State Government, along with objections and suggestions received by Surat urban Development Authority. These suggestions and objections include objections filed by the petitioners and therefore, the Government thought it fit under the proviso to clause (ii) of sub-clause (a) of sub-section (1) of section 17 of the Act of 1976, to invite further suggestions and objections as to proposed modifica
