TMI Blog2008 (3) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... cross objections preferred by the appellants. 3. The Gujarat Town Planning and Urban Development Act, 1976 (for short the said Act ) came into force with effect from February 1st, 1978. The State Government in exercise of its power conferred under the provisions of the Act constituted Surat Urban Development Authority (SUDA) which prepared a draft development plan whereby the lands belonging to the appellants were proposed for designating the use of the lands for residential purposes. The State Government having considered the draft development plan submitted by SUDA sanctioned the plan in the modified form on January 31, 1986 whereby the appellants lands in question were reserved for education complex of South Gujarat University . The final development plan was accordingly brought into force with effect from March 31, 1986. Neither the Area Development Authority nor the Authority for whose purpose land has been designated in the final Development Plan initiated any steps to acquire the lands of the appellants. The appellants having waited for a period of 10 years from the date of coming into force of the final development plan got served a notice on the Authority concerned r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to designate the lands for educational purposes could have been arrived at. The matter was remitted for fresh consideration in the light of the observations and the directions issued by the High Court. 6. We have heard Shri Ashok H. Desai and Shri T.R. Andhyarujina, learned senior counsel appearing for the appellants, Shri R. P. Bhatt, learned senior counsel for the State Government and Shri Prashant G. Desai, learned counsel for SUDA. The contention of the learned counsel for the appellants was that on a true interpretation of the provisions of the said Act it was not open to the Government to designate the land in question as education zone and secondly assuming that there is such a power, the exercise of the said power by the preliminary Notification dated 22nd July, 2004 and final Notification dated 28th September, 2004 is not legal and bona fide particularly in the light of the fact that the earlier reservation for a similar though not identical purpose, namely, education complex of South Gujarat University was struck down by the Supreme Court in Bhavnagar University (supra). 7. The submission on behalf of the State Government was that the preliminary notification issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sought to be reserved for education complex of South Gujarat University . The said plan was sanctioned under Section 17 of the Act on 3rd March, 1986. The appellants after expiry of period of 10 years gave notice under sub- section (1) of Section 20 calling upon the authority to acquire the land. Nothing happened in the matter. 11. In the meanwhile, SUDA prepared and published the draft revised development plan in respect of the lands under Section 13 of the Act once again reserving the land for education complex of South Gujarat University. Notice regarding publication of the draft revised development plan calling suggestions on the proposed draft revised development plan was published in the Gazette on 29.2.1996. This was done in purported exercise of the power under Section 21 of the Act whereunder the development authority is under statutory obligation to revise the development plan at least once in 10 years from the date on which the final development plan comes into force. 12. The appellants filed writ petitions in the High Court of Gujarat challenging the action re-reserving the land in the draft revised development plan for the same purpose namely education complex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of South Gujarat University and should be placed in appropriate zone. The note further suggested that after releasing the lands from reservation, the same should be placed under residential zone. On 21.7.2004 the Minister concerned passed the order which reads as under: ..Reservation may be cancelled as suggested. However, (for the lands which are being de- reserved) educational zone in terms of Section 12(2)(o) of the Gujarat Town Planning and Urban Development Act be provided and notice be issued accordingly.. 16. It was pursuant to this direction, the preliminary notification dated 22nd July, 2004 came to be issued by the Government calling for objections and suggestions against the proposed substantial modifications of the development plan. Point for consideration : 17. 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? 18. Before we address ourselves to the questions for their determination it would be appropriate to notice Sections 17 and 21 which are as under : Section 17 (1) (a) : On receipt of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the regulations in such modified form as it may consider fit. (d) The sanction accorded under ? [clause (a), clause (b) ] or clause (c) shall be notified by the State Government in the Official Gazette and the draft development plan together with the regulations so sanctioned shall be called the final development plan. (e) The final development plan shall come into force on such date as the State Government may specify in the notification issued under clause (d): Provided that the date so specified shall not be earlier than one month from the date of publication of such notification. (2) Where the draft development plan submitted by an area development authority, as the case may be, the authorized officer contains any proposals for the reservation of any land for a purpose specified in clause (b) or ?[clause (n) or clause (o)] of sub-section (2) of section 12 and such land does not vest in the area development authority, the State Government shall not include the said reservation in the development plan, unless it is satisfied that such authority would acquire the land, whether by agreement or compulsory acquisition, within ten years from the date on which the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of opinion that substantial modifications in the draft development plan are necessary is of crucial importance. Is there any material available on record which enabled the State Government to form its opinion that substantial modifications in the draft development plan were necessary? The State Government s jurisdiction to make substantial modifications in the draft development plan is inter-twined with the formation of its opinion that such substantial modifications are necessary in the draft development plan. The State Government without forming any such opinion cannot publish the modifications considered necessary along with notice inviting suggestions or objections. We have already noticed that as on the day when the Minister concerned took the decision proposing to designate the land for educational use the material available on record were : (a) the opinion of the Chief Town Planner; (b) Note dated 23rd April, 2004 prepared on the basis of the record providing the entire background of the previous litigation together with the suggestion that the land should no more be reserved for the purpose of South Gujarat University and after releasing the lands from reservati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the material disclosing that a necessity had arisen to make substantial modifications in the draft development plan. 25. The formation of the opinion by the State Government is with reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. The expression: so considered necessary is again of crucial importance. The term consider means to think over; it connotes that there should be active application of the mind. In other words the term consider postulates consideration of all the relevant aspects of the matter. A plain reading of the relevant provision suggests that the State Government may publish the modifications only after consideration that such modifications have become necessary. The word necessary means indispensable, requisite; indispensably requisite, useful, incidental or conducive; essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The word necessary must be construed in the connection in which it is used. (See-Advanced Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar) 26. The formation of the opinion by the State Government should reflect intense applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has to be determined on a totality of consideration of all the relevant provisions. This Court while construing Section 237 of the Companies Act, 1956 held: 64. The object of s. 237 is to safeguard the interests of those dealing with a company by providing for an investigation where the management is so conducted as to jeopardize those interests or where a company is floated for a fraudulent or an unlawful object. Clause (a) does not create any difficulty as investigation is instituted either at the wishes of the company itself expressed through a special resolution or through an order of the court where a judicial process intervenes. Clause (b), on the other hand, leaves directing an investigation to the subjective opinion of the government or the Board. Since the legislature enacted s. 637 (i) (a) it knew that government would entrust to the Board its power under s. 237 (b). Could the legislature have left without any restraints or limitations the entire power of ordering an investigation to the subjective decision of the Government or the Board ? There is no doubt that the formation of opinion by the Central Government is a purely subjective process. There can also be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test the need on the basis of public and commercial morality. There must therefore exist circumstances which in the opinion of the Authority suggest what has been set out in sub- clauses (i), (ii) or (iii). If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute. 30. This Court while expressly referring to the expressions such as reason to believe , in the opinion of observed: Therefore, the words, reason to believe or in the opinion of do not always lead to the construction that the process of entertaining reason to believe or the opinion is an altogether subjective to process not lending itself even to a limited scrutiny by the court that such a reason to believe or opinion was not formed on relevant facts or within the limits or as Lord Radcliffe and Lord Reid called the restraints of the statute as an alternative safeguard to rules of natural justice where the funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act. The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependents, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that reason, instead of returning in the plan, decided to publish the modifications so considered necessary in the Official Gazette along with the notice inviting suggestions or objections with respect to the proposed modifications. It is very well settled, public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the decision making authority. Public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (See Gordhandas Bhanji and Mohinder Singh Gill Anr. Vs. The Chief Election Commissioner, New Delhi ). 36. Neither the preliminary notification itself nor the records disclose the formation of any opinion by the State Government much less any consideration that any necessity as such had arisen to make substantial modifications in the draft development plan. 37. On consideration of the facts and the material available on record, it is established that the State Government took the action proposing to make substantial modifications to the plan without forming of any opinion, which is a condition pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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