2008 (3) TMI 660 - SC - Indian Laws

Whether the State Government and Urban Development Authority has power to create separate zone under section 12(2)(o) of The Gujarat Town Planning and Urban Development Act, 1976? Whether the action of the State Government in issuing preliminary notification and the final notification designating the said lands for educational use is valid? Whether the action is ultra vires?

Issues Involved:
1. Legality of the re-reservation of land for educational purposes by the State Government.
2. Validity of the preliminary and final notifications issued by the State Government designating the land for educational use.
3. Interpretation of Sections 17 and 21 of the Gujarat Town Planning and Urban Development Act, 1976.

Issue-wise Detailed Analysis:

1. Legality of the Re-reservation of Land for Educational Purposes:
The appellants' lands were initially designated for residential use by SUDA. However, the State Government modified the draft development plan to reserve the lands for an education complex of South Gujarat University. The appellants waited for ten years without any acquisition steps taken by the authorities and served a notice requiring acquisition within six months, which was ignored. SUDA then revised the development plan, again reserving the land for educational purposes. The appellants challenged this re-reservation, culminating in the Supreme Court's judgment in Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others, which held that Section 21 of the Act does not allow the substantial rights of landowners to be taken away under the guise of revising the development plan.

2. Validity of Preliminary and Final Notifications:
The State Government issued a preliminary notification on July 22, 2004, and a final notification on September 28, 2004, designating the land for educational use under Section 12(2)(o) of the Act. The appellants challenged these notifications, arguing that the State Government's actions were neither legal nor bona fide, especially in light of the Supreme Court's earlier judgment. The High Court found no material supporting the decision to designate the land for educational purposes, noting that the Chief Town Planner had suggested placing the land in a residential zone. The Minister's decision to designate the land for educational use lacked substantial backing, as it was based on a mere noting without proper consideration of the Chief Town Planner's recommendations.

3. Interpretation of Sections 17 and 21 of the Gujarat Town Planning and Urban Development Act, 1976:
Section 17 grants the State Government wide powers to sanction, modify, or refuse the draft development plan. However, the proviso to Section 17(1)(a)(ii) requires the State Government to form an opinion that substantial modifications are necessary before publishing such modifications. The Court emphasized that the formation of this opinion must be based on relevant material and cannot be arbitrary. Section 21 mandates that the same procedure for preparing and sanctioning the draft development plan applies to its revision. The State Government must have material evidence to support its opinion that substantial modifications are necessary, which was lacking in this case.

Conclusion:
The Supreme Court found that the State Government's action to designate the land for educational use was ultra vires and void due to the lack of material evidence and proper formation of opinion. The appellants were deprived of their right to use the land for residential purposes for over a quarter century. The notifications issued by the State Government were struck down, and the appellants were allowed to utilize the land for residential purposes. The appeal was allowed with costs.

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