TaxTMI 
TaxTMI 
2002 (12) TMI 563
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.... 6461/96 and 6519/98 involving the question as regard to interpretation of Sections 20 and 21 of the Gujarat Town Planning and Urban Development Act, 1976 (for brevity, hereinafter referred to as the 'Said Act'), were taken up for hearing together and are being disposed of by this common judgment. 3. The basic fact of the matter is not in dispute. 4. The State of Gujarat in exercise of its power conferred upon it under Section 20 of the said Act reserved certain areas of which the respondents herein amongst others are the owners. 5. On or about 3.3.1986 a development plan was finally published in terms of the provisions of the said Act, and the period of 10 years therefrom lapsed on 2.3.1996. A revised Development plan however came into being on 20th February, 1996. It is not in dispute that respondents who claim ownership of the lands in question issued notices in terms of sub-section 2 of Section 20 of the said Act, asking the State Government to acquire the properties in terms thereof. 6. The short question which arises for consideration in these matters is as to whether by reason of inaction on the part of the State and its authorities under the Town Planning Act to....
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....t be kept under suspension for a long time and the period of 10 years specified by the legislature must be held to be a reasonable one, and thus by no stretch of imagination only by taking recourse to the provisions of Section 21 of the said Act, the period specified therein can be extended. Strong reliance in support of the said contention has been placed on Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association & Ors. [(1988) Supp. SCC 55]. 11. Mr. Desai would urge that the expression 'so far as may be' occurring in Section 21 of the Act must be given a proper meaning and thus in the event the interpretation of the provisions put-forth by the learned counsel for the appellant is accepted, the same will lead to an anomalous and absurd situation; which was not contemplated by the Legislature. 12. Reliance in this connection has been placed in The Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah & Ors. [(1976) 4 SCC 9]. 13. Before we advert to the rival contentions, as noticed hereinbefore, we may look to the relevant provision of the said Act. 14. The preamble suggests that the said Act was enacted to consolidate and amend ....
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....the following matters, namely:- (a) xxxx (b) proposals for the reservation of land for public purposes, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, public assembly, museums, art galleries, religious buildings, playgrounds, stadium, open spaces, dairies and for such other purposes as may, from time to time, be specified by the State Government; (c) xxxx (d) transport and communications, such as roads, highways, parkways, railways, waterways, canals and airport, including their extension and development. (e) xxxx (f) reservation of land for community facilities and services; (g) xxxx (h) xxxx (i) xxxx (j) xxxx (k) proposals for the reservation of land for the purpose of Union, any State, local authority or any other authority or body established by or under any law for the time being in force; (l) xxxx (m) xxxx (n) provision for preventing or removing pollution of water or air caused by the discharge of wast....
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....opment plan, by extending or reducing its area. Under Section 19, the State Government is empowered to vary the final development plan, but, only after inviting suggestions and objections in the manner laid down therein. Section 20 provides for acquisition of land designated or reserved for specified purposes mentioned in Section 12. As the said provision is material for this case, the same is reproduced hereunder:- 20. "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-section (2) of Section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894. (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 ....
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....ught not to assume without the clearest language that the legislature intends to destroy common law rights. The presumption is that the legislature intends not to interfere with any legal rights or any legitimate expectations of any person whatsoever. Rights, whether private or public, cannot be taken away or hampered by implication from the language employed in a statute, unless the legislature clearly and distinctly authorises the doing of a thing which is physically inconsistent with the continuance of an existing right. In order to take away the right it is not sufficient to show that the thing sanctioned in the Act, it done, will of a sheer physical necessity, put an end to that right; it must also be shown that the legislature has authorised the thing to be done at all events, and irrespective of its possible interference with existing rights. An Act should be so interpreted as in no respect to interfere with or prejudice a clear private right or title unless that, private right or title is taken away per directum" 28. By reason of the provision of the said Act, a reasonable restriction, has been imposed upon the owner on the user of his property. In terms of Section 12 of....
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....d or reserved for the purpose specifically mentioned in clauses (b) and (n) of sub-section (2) of Section 12 as also other clauses specified therefor either by acquisition or agreement or in terms of the provisions of the Land Acquisition Act. Sub-section (1) of Section 20 is merely an enabling provision. 32. Sub-section (2) of Section 20, however, carves out an exception to the exercise of powers by the State as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under sub-section (1) of Section 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further in the event an owner or a person interested in the land serves a notice in the manner specified therein, certain consequences ensue, namely, the designation of the land shall be deemed to have lapsed. A legal fiction, therefore, has been created in the said provision. 33. The purpose and object of creating a legal fiction in the statute is well-known. When a legal fiction is created, it must be given its full effect. In ....
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....iod of six months provided by Section 127 upon the expiry of which the reservation of the land under a Development Plan lapses, is a valuable safeguard to the citizen against arbitrary and irrational executive action. Section 127 of the Act is a fetter upon the power of eminent domain. By enacting Section 127 the legislature has struck a balance between the competing claims of the interests of the general public as regards the rights of an individual." It was observed that: "The Act lays down the principles of fixation by providing first, by the proviso to Section 126(2) that no such declaration under sub-section (2) shall be made after the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan, secondly, by enacting sub-section (4) of Section 126 that if a declaration is not made within the period referred to in sub-section (2), the State Government may make a fresh declaration but, in that event, the market value of the land shall be the market value at the date of the declaration under Section 6 and not the market value at the date of the notification under Section 4, and thirdly, by Section 127 that if any l....
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....rements must be followed so far as it is reasonably possible. Section 21 of the Act, in our opinion, does not and cannot mean that the substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the Legislature that what is given by one hand should be taken away by the other. 38. Section 21 does not envisage that despite the fact that in terms of sub-section (2) of Section 20, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a land-owner under Section 22 of getting the land defreezed. In the event the submission of the learned Solicitor General is accepted the same would completely render the provisions of Section 20(2) otiose and redundant. 39. Sub-section (1) of Section 20, as noticed hereinbefore, provides for an enabling provision in terms whereof the State become entitled to acquire the land either by agreement or taking recourse to the provisions of the Land Acquisition Act. If by reason of a revis....
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....in, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At p.111 it is stated as follows: "As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive." [See also Crawford on Statutory Construction, Article 269 at p.535]. 44. In Dattatrays v. State of Bombay [AIR 1952 SC 181], it was held as under:- "Generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promo....
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.... for the Appellant strongly relied upon, may in the aforementioned backdrop, be considered. In that case, the vires of the provisions of Sections 9, 10, 11, 12 and 13 of the Bombay Town Planning Act, 1954 were in question. Although the constitutionality of Section 17 of the Act was also questioned before this Court, at the hearing the same was given up. The Court specifically noticed so stating:- "Towards the end of the hearing counsel for the petitioners submitted that s.17 of the Act might be left out of consideration for the purpose of these petitions and learned counsel for the respondents were agreeable to this course. We, therefore, do not express our views about the validity or otherwise of this section." 49. In that case the rights of the owners accrued to them having regard to the inaction on the part of the State and other authorities despite rights to the owners of land as envisaged under sub-section (2) of Section 20 of the Act were not in question. Section 17 of the Act was in pari materia with Section 21 of the said Act. The scheme of the provisions of the Bombay Act as regards designation or reservation of land for ten years and further right of revision ....
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....months from the date of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have lapsed. This provision again is for the benefit of the owner of the land for unless the land is acquired or steps taken in that behalf within the fixed limits of time, he ceases to be bound by the designation of his land as given in the development plan." (Emphasis Supplied) 52. What was emphasised in that case is unreasonableness of Section 17 of the Act which, as indicated hereinbefore, was not pressed at a later stage. This Court had no occasion to consider the conflicting rights of the parties under sub-section (3) of Section 10 vis--vis Section 17 of the Bombay Act. What was considered and upheld by the Court was the contention that by taking the recourse to Section 17 more than once acquisition might be held up indefinitely from generation to generation. 53. As the facts of the present case stand absolutely on a different footing and this Court in K.L. Gupta's case (supra) was not called upon to answer the same, the same cannot be said to be an authority for the proposition that by reason of Section 21 of the....
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....sition proceedings for long period often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them." 56. The decision in Ahmedabad Urban Development Authority's case (supra), in our opinion, has again no application to the fact of the present case. The fact of the matter therein was completely different. The Gujarat Planning and Urban Development Act, 1976, which is now in operation in the State of Gujarat, came into force from 30th November, 1978, prior to which the Bombay Town Planning Act, 1954 was applicable to the State of Gujarat. Prior to coming into force of the Gujarat Act, the Ahmedabad Municipal Corporation submitted the development plan on 15th January, 1976 which came to be sanctioned by the State Government on 12th August, 1983. It was held by this Court that the draft development plan submitted by the Corporation on 15th January, 1976, could not have been sanctioned under the provisions of the Gujarat Act on 12th August, 1983 ignoring the fact that meanwhile a comprehensive draft development plan had been prepared and submitted by the Corporation on 23rd July, 1981 which also came to be sanctioned on 2nd November, 19....
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....on. [See Smt. Ram Rakhi v. Union of India & Ors. [AIR 2002 Delhi 458], Delhi Administration (NCT of Delhi) v. Manoharlal [AIR 2002 SC 3088], Haryana Financial Corporation and Anr. v. M/s Jagdamba Oil Mills & Anr. [JT 2002 (1) SC 482] and Dr. Nalini Mahajan etc. v. Director of Income Tax (Investigation) & Ors. [(2002) 257 ITR 123]. 60. For the aforementioned reasons, we are in agreement with the findings of the High Court. 61. Before parting with the case, we may notice that Mr. Tanna appearing on behalf of the South Gujarat University in C.A. No.1540 of 2002 submitted that various other contentions had also been raised before the High Court. We are not prepared to go into the said contentions inasmuch assuming the same to be correct, the remedy of the appellants would lie in filing appropriate application for review before the High Court. Incidentally, we may notice that even in the special leave petition no substantial question of law in this behalf has been raised nor any affidavit has been affirmed by the learned advocate who had appeared before the High Court or by any officer of the appellant who was present in court that certain other submissions were made before the Hi....