Dismissed

State of Gujarat v. Swapnashrushti Horizon Pvt. Ltd. Formerly M/S Sheth Brothers Realty Pvt. Ltd.

Gujarat HC29 Nov 2018LPA/1434/2018

Case brief

AI extract

What is this about?

This order allows condonation of delay in filing a Letters Patent Appeal against a Single Judge's decision. The appellate court dismisses the appeal, upholding the finding that land reservation lapsed under Section 20(2) of the Gujarat Town Planning and Urban Development Act, 1976.

What did the court decide?

Appeal dismissed; Civil Application disposed of in view of dismissal of main appeal.

State of Gujarat Vs Swapnashrushti… — Constitutional and Fundamental Rights | Gujarat HC (2018)

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C/LPA/1434/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 1434 of 2018

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In SPECIAL CIVIL APPLICATION NO. 16794 of 2014

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With CIVIL APPLICATION NO. 1 of 2018 With

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CIVIL APPLICATION NO. 2 of 2018

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STATE OF GUJARAT

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Versus

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SWAPNASHRUSHTI HORIZON PVT LTD FORMERLY M/S SHETH BROTHERS REALTY PVT LTD

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Appearance:

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MR CHINTAN DAVE, ASST GOVERNMENT PLEADER(1) for the PETITIONER(s) No. 1,2 MR HS MUNSHAW(495) for the RESPONDENT(s) No. 2 NISARG H VYAS(9431) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 29/11/2018

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ORAL ORDER

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(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)

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ORDER IN CIVIL APPLICATION NO. 1 OF 2018

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Rule. Mr. Nisarg Vyas, learned advocate appearing for opponent no. 1 and Mr. H.S. Munshaw, learned advocate appearing on behalf of the opponent no. 2 waive service of notice of Rule.

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This Civil Application has been filed by the State praying for condonation of delay of 647 days in filing the

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Page 1 of 9

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C/LPA/1434/2018 ORDER

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accompanying Letters Patent Appeal challenging the common oral judgement dated 10.02.2016 passed by the learned Single Judge allowing the writ petition being Special Civil Application No. 16794 of 2014.

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Perusal of the averments made in the application indicate that the applicants have explained the delay in filing the appeal beyond time. Procedure undertaken to obtain legal opinion from the hierarchy of competent authorities indicates that necessary steps were taken by the officers and papers were handed over to the office of the Government Pleader to file the appeal.

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Mr. Nisarg Vyas, learned advocate appearing on behalf of the opponent no. 1 has invited our attention to the contents of the affidavit-in-reply filed in the application opposing condonation of delay. He has expressed serious reservations and requested the Court to reject the application at the threshold.

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However, having considered the averments made in the application on behalf of the State and also taking into consideration the objections of the learned counsel for opponent no. 1, we find that the applicant – State authorities have sufficiently explained the cause of delay in approaching this Court beyond the stipulated period of limitation in filing the appeal. Having been so satisfied, we are of the opinion that sufficient cause exists and accordingly the application is allowed. The delay of 647 days in filing the appeal is hereby condoned. Rule is made absolute accordingly.

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Page 2 of 9

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C/LPA/1434/2018 ORDER

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ORDER IN LETTERS PATENT APPEAL WITH CIVIL APPLICATION NO. 2 OF 2018

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Present Letters Patent Appeal arises out of a common oral judgement dated 10.02.2016 passed by the learned Single Judge (Coram: Honourable Mr. Justice R.M. Chhaya) in the writ petition being Special Civil Application No. 16794 of 2014 filed by the respondent no. 1 – original petitioner.

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Since the facts involved in the appeal are not in dispute, in order to avoid repetition, the relevant paragraphs of the judgement of the learned Single Judge regarding the facts are reproduced hereunder:

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“2. By way of these petitions under Article 226 of the Constitution of India, the petitioners in both petitions have prayed for appropriate writ, order or direction in the nature of mandamus directing the respondents authorities to hold and declare that the reservation of village extension for Bhavnagar Area Development Authority (hereinafter referred to as "BADA" for short) for the lands in question as having been lapsed and further direction to allow the petitioners to utilize the lands for any appropriate requirements.

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In Special Civil Application No.16791 of 2014, the petitioner is the owner and occupier of the land bearing Survey No.182/2/Part of village Adhevada, admeasuring 26912 Sq.Mtrs. It is the case of the petitioner that the petitioner purchased the land in question by registered Sale-Deed dated 19.07.2007. Thereafter, the petitioner converted the use of land from agricultural to non-agricultural for part of the land, which was granted by the competent authority under the Bombay Land Revenue Code vide order dated 13.10.2008 for the land admeasuring 18919 Sq.Mtrs., and remaining part of the land i.e. 7993 Sq.Mtrs., was reserved for BADA for village extension purpose in the final

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Page 3 of 9

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C/LPA/1434/2018 ORDER

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development plan.

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In Special Civil Application No. 16794 of 2014, the petitioner is the owner and occupier of the land bearing Survey No.15/1 and 15/2 of village Sidsar, admeasuring 0-30 Gunthas and 2 Acres and 12 Gunthas respectively. It is further case of the petitioner that the petitioner Company purchased the said land by registered Sale-Deed dated 18.06.1999 and thereafter, the petitioner converted the use of the land from agricultural to nonagricultural and the said land in question stands reserved for BADA for the purpose of neighborhood reservation.

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In both the petitions, first development plan of BADA came to be sanctioned on 18.01.1990 and in the said final development plan, the lands in question were reserved for the purpose as observed hereinabove. It is also matter of record that in the revised development plan, which came to be sanctioned on 21.05.2001 by the State Government under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act" for short), the lands in question in both the petitions stood reserved for the very said purposes respectively.

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It is also matter of record that again in the second revised development plan of BADA, which came to be sanctioned under the provisions of the Act, the lands in question stood reserved for the very same purpose. However, till date, the lands are not acquired and are not utilized for the purpose for which the lands in question are so reserved.

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The petitioner of Special Civil Application No. 16791 of 2014 issued notices through her advocate to BADA, Land Acquisition Officer - Bhavnagar, Chief Town Planner- Gandhinagar and Gram Panchayat, Adhevada on 14.03.2014 and the same is received by the said authorities as is evident from the registered A. D. receipts, which are forming part of the record.

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Similarly in Special Civil Application No.16794 of 2014, the petitioner issued notices on the same day to the same authorities and the notices also have been received by the respective authorities.”

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C/LPA/1434/2018 ORDER

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From the facts reproduced hereinabove, it is borne out that the respondent no. 1 – original petitioner was owner and occupier of certain lands. The respondent no. 1 had converted use of the lands from agricultural to nonagricultural purposes. These lands stood reserved for Bhavnagar Area Development Authority (for short ‘BADA’) for the purpose of “neighbourhood reservation”. The reservation in question which was sanctioned on 18.01.1990 was again renewed after ten years for the very same purpose by sanction order of 21.05.2001. In other words for two decades, the lands stood so reserved. In such a backdrop, the respondent no. 1 issued notice on 14.03.2014 to the Land Acquisition Officer, BADA in accordance with the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as ‘the Act’). It would be in the fitness of things to reproduce Section 20 of the Act which reads as under:

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"Section 20 – Acquisition of land :

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(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-section (2) of Section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.

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(2) If the land referred to in sub-section (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, are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such

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C/LPA/1434/2018 ORDER

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notice the land is not acquired or no steps are commenced for its acquisition, the designation of land as aforesaid shall be deemed to have lapsed." 3.1 Reading sub-section (2) of Section 20 of the Act would indicate that if the land designated for the purpose for which it is so designated, is not acquired within a period of ten years, the owner or the person interested in the land may serve a notice on the authority concerned, requiring it to acquire the land and if within six months from the date of service of such notice, the land is not acquired or no steps are commenced for its acquisition, the designation of the land is deemed to have lapsed.

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3.2 It is under this provision of law that the respondent no. 1 – original land owner gave a notice to the competent authority, on 14.03.2014. It is not disputed that on service of such notice, no steps were taken by the competent authority to commence acquisition. The respondent no. 1 – original petitioner, therefore, prayed for an appropriate direction to hold and declare that the reservation of the lands in question has lapsed and therefore they be allowed to utilize the lands for any appropriate requirements.

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Mr. Chintan Dave, learned Assistant Government Pleader appearing for the State has assailed the findings of the learned Single Judge. In his submission, once the authorities have already decided to re-reserve the lands in question and submitted a proposal to the State Government, the learned Single Judge ought to have dismissed the petition as pre-mature. Even the proposal to re-reserve was sent, according to Mr. Dave, provisions of sub-section (2) of Section 20 could not have been invoked. That the learned Single

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C/LPA/1434/2018 ORDER

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Judge failed to appreciate that the respondent no. 1 had purchased such lands knowing that they were reserved and therefore the respondent no. 1 was not entitled to the benefit of the provisions of sub-section (2) of Section 20 of the Act. The lands in question, in Mr. Dave’s submission, were needed for public purpose and therefore no mandamus could have been issued to de-reserve the same and let the land be utilized by respondent no. 1 herein.

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Mr. Nisarg Vyas, learned advocate appearing for respondent no. 1 has supported the judgement of the learned Single Judge and submitted that no interference is called for as the same has been passed in accordance with law after taking into consideration the relevant documents and the provisions of law.

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Having considered the arguments of the learned advocates appearing on behalf of the respective parties and having read the judgement under challenge before us, the following undisputed facts emerge:

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(I) The lands reserved for the purpose had been so reserved since 1990 and were not utilized for such purpose for over three decades.

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(II) Section 20(2) of the Act gives a right to the owner of a land to put the authorities to notice to utilize such land. On a notice so given, if within six months, no designated use is made, the reservation lapses. Facts on hand do reveal, which are not even disputed, that on service of notice and on the expiry of six months from receipt of such notice, the competent authority did

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C/LPA/1434/2018 ORDER

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nothing to take steps to commence acquisition for the designated use. Obviously, therefore, by operation of law, the landholder secured a right to utilize the land for their purpose as the reservation of the competent authority lapsed.

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(III) The fact that the BADA made a proposal to dereserve the land and the proposal was sent to the Government fortifies the operation and claim of the respondent no. 1 to claim the benefit of Section 20(2) of the Act.

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The learned Single Judge, in our opinion, committed no error, much less an error of law in allowing the petition and issuing a writ of mandamus as prayed for declaring that reservation in the lands in question be declared to have been lapsed. We are in agreement with the findings of the learned Single Judge, who found support in arriving at the conclusion he did, based on the judgement of the Apex Court in the case of Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and Others reported in (2003) 2 SCC 111 . Referring extensively and quoting the relevant paragraphs of the judgement in the said case, the learned Single Judge, based on undisputed facts, came to a conclusion that in the event the land reserved is not acquired or proceedings to so reserve are not commenced and further in the event an owner or a person interested in the land serves a notice, the designation of the land shall be deemed to have lapsed.

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7.1 The learned Single Judge also rightly negated the contention of the State that once the proposal for de-reserving was sent, the petition had become infructuous. Reliance in

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C/LPA/1434/2018 ORDER

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negating such a contention was placed on a judgement of the Division Bench rendered in Letters Patent Appeal No. 1244 of 2015 where the Court observed as under:

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“9. The attempt made to contend that the petitions could be said as infructuous on the date when the same were filed in the year 2014 because of the new draft development plan or revised draft development plan were published on 17.12.2013, in our view, cannot be accepted for two reasons; first is that the deeming fiction for lapsing of the reservation is not to adversely affect even if the land is re-reserved under Section 21 of the Act and the second is that if the deeming fiction has already come into operation and the reservation has lapsed and the re-reservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. On the contrary, the right so revived on account of the lapsing of the reservation would continue even after the re-reservation. Hence, the said contention cannot be accepted.”

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We are therefore in complete agreement with the reasonings adopted and findings arrived at by the learned Single Judge and accordingly find that the appeal deserves to be dismissed. Appeal is accordingly dismissed. Civil Application also stands disposed of in view of dismissal of the main appeal.

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(ANANT S. DAVE, ACJ)

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(BIREN VAISHNAV, J)

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DIVYA

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Page 9 of 9

State of Gujarat v. Swapnashrushti Horizon Pvt. Ltd. Formerly M/S Sheth Brothers Realty Pvt. Ltd.

Case brief

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State of Gujarat v. Swapnashrushti Horizon Pvt. Ltd. Formerly M/S Sheth Brothers Realty Pvt. Ltd.

Case brief

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