Gujarat High Court
Amit Vasantlal Shah vs State Of Gujarat on 15 June, 2026
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/5407/2020 JUDGMENT DATED: 15/06/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5407 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
√
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AMIT VASANTLAL SHAH
Versus
STATE OF GUJARAT & ORS.
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Appearance:
KISHAN Y DAVE(8293) for the Petitioner(s) No. 1
MR PERCY KAVINA SR. ADVOCATE with MR RASESH H PARIKH(3862) for
the Petitioner(s) No. 1
MR.HEMANG H PARIKH(2628) for the Petitioner(s) No. 1
MR HARDIK SONI, AGP for the Respondent(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 3
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 15/06/2026
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. Percy Kavina with learned
Advocate Mr. Rasesh H. Parikh for the petitioner, learned AGP Mr.
Hardik Soni for the respondent No.1-State, learned Advocate Mr. Dhaval
Nanavati for the respondent No.2 – Surat Urban Development Authority
and respondent No.3 – Surat Municipal Corporation.
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2. Rule returnable forthwith. Learned Advocates for the respective
respondents waive service of notice of rule.
3. The present petition has been preferred praying for the following
reliefs :
“9. A. Declare that the subject land is free from reservation under
the provisions of the Act;
B. Declare zoning certificate 8.1.2020 issued by Respondent No.2
as null and void to the extent in described the subject land as
reserved for ‘Open Space and Garden’ in view of notification dated
2.9.2004 and reserved for public purpose in view of Draft
Development Plan dated 18.11.2019 and be pleased to direct the
Respondent No.2 to issue appropriate Zoning Certificate in the
interest of justice.
C. Pending admission hearing and till final disposal of this
petition, your Lordships may be pleased to direct Respondent No.2
to issue zoning certificate with respect to the subject land as free
from reservation, in the interest of justice.
D. Your Lordships may be pleased to pass such other and/or
further orders as may be deemed fit, just and proper in the interest
of justice.”
4. The Above prayers have been sought for in context of the
following facts :
4.1 It is the case of the petitioner that the petitioner is owner of the
subject land admeasuring approximately 2200 sq. mtrs. and whereas the
said land was reserved for ‘Open Space and Garden’ in final development
plan published by the respondent No.2 – Urban Development Authority
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on 31.01.1986. It is the case of the petitioner that as per the provisions of
the Gujarat Town Planning and Urban Development Act, 1976
(hereinafter to be referred to as “the Act”), the Urban Development
Authority was required to acquire the subject land within a period of ten
years following the sanction of development plan i.e. from 31.01.1986.
4.2 It is the case of the petitioner that predecessor-in-title of the
petitioner had issued a notice under Section 20(2) of the Act, on
01.04.1996 inter alia calling upon the respondents to acquire the land in
question as provided under Section 20 of the Act. It is the case of the
petitioner that since the respondent No.2- Urban Development Authority
did not acquire the land even after lapse of six months after the notice had
been issued, the reservation qua the subject land was deemed to have
lapsed. It is the case of the petitioner that even after the deeming fiction
came into effect, upon six months passing from 01.04.1996, i.e. the date
of statutory notice under Section 20(2) of the Act, the respondent-State
published modified the Draft Development Plan under Section 17(1)(a)(i)
of the Act and the reservation qua the subject land under the head ‘Open
Space and Garden’ was deleted and the land was designated for
residential use under Section 12(2)(a) of the Act.
4.3 It is the case of the petitioner that the State again issued
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Notification under Section 17(1)(c) of the Act and whereas, though the
Zoning Certificate issued dated 08.01.2020 described the subject land as
earmarked for ‘Open Space and Garden’ (O-6), in the said Notification,
yet, perusal of the Notification reveals that no such reservation was
marked.
4.4 It is also the case of the petitioner that since the land had not been
acquired even after ten years from the Notification dated 02.09.2004 and
since no steps had been taken after notice under Section 20(2) of the Act
by the original owner, the reservation/designation is deemed to have
lapsed on 03.09.2014 and the petitioner had purchased the land in
question vide registered sale deed dated 30.03.2015 and 11.05.2015. It is
submitted that though in the interregnum, the State had published Draft
Development Plan under Section 16 of the Act, namely Development
Scheme – 2035, and the land was reserved for public purpose, i.e. the
land being designated, for a third time, for a different purpose.
4.5 It is also the case of the petitioner that the petitioner, thereafter, had
issued a notice once again under Section 20(2) of the Act and whereas
since nothing had been heard from the respondents, the petitioner had
applied under the Right to Information Act and whereas the reply
received reflected that no steps had been undertaken for acquiring the
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land in question. Thus, the petitioner has approached this Court inter alia
seeking for the declaration, as above.
5. Heard learned Senior Advocate Mr. Percy Kavina on behalf of the
petitioner, who would take this Court through the gamut of facts, as
noticed by this Court hereinabove as well as the relevant statute, more
particularly Section 20 of the Gujarat Town Planning and Urban
Development Act, 1976 and would submit that the original land owner
having issued a notice on 01.04.1996, i.e. after a period of ten years from
the final development plan, calling upon the respondents to acquire the
land in question and after a period of six months from the date of the
notice, neither the land being acquired nor any steps being taken for
acquisition of the land, the deeming fiction would take effect i.e. the
designation of the land as has having been reserved, should be deemed to
have lapsed. Learned Senior Advocate would submit that while the
present petitioner being the successor-in-title, having purchased the land
from the original owner, and while the petitioner himself though only by
way of abundant caution, had issued a notice under Section 20(2) of the
Act, on 15.01.2020, yet, the same would not dilute the effect of notice
under Section 20(2) of the Act, issued by the original owner, and the
authorities not taking appropriate steps, the reservation upon the land in
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question should be deemed to have lapsed, no matter what the subsequent
developments.
5.1 Learned Senior Advocate Mr. Kavina would also rely upon
decision of the Hon’ble Division Bench of this Court in case of Gujarat
Housing Board Vs. State of Gujarat, reported in 2018 (0) GUJ C
25809, and would submit that the Hon’ble Division Bench, relying upon
the celebrated decision of the Hon’ble Supreme Court in case of
Bhavnagar University Vs. Palitana Sugar Mill (P.) Ltd. and others,
reported in (2003) 2 SCC 111, has reiterated the law, more particularly
in an identical scenario. Learned Senior Advocate relying upon the said
decision would submit that the said decision being on an identical set of
facts, the benefit as having accrued in favour of the original land owner,
may also be passed on the present petitioner.
6. The present petition is vehemently opposed by learned Advocate
Mr. Dhaval Nanavati on behalf of the respondent No.2. Learned
Advocate Mr. Nanavati would submit that while the predecessor-in-title
of the petitioner may have issued a notice under Section 20(2) of the Act
at the relevant point of time, and the land may not have been acquired,
yet, having regard to the subsequent developments i.e. the plan being
revised after completion of ten years and the land having been reserved
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for a different purpose, the notice issued by the predecessor-in-title of the
petitioner would cease to have any consequences. Learned Advocate
would submit that as such, insofar as the present petitioner is concerned,
he would not be entitled to take advantage of the notice issued by the
predecessor-in-title, more particularly since the petitioner would get a
right to issue such notice only after completion of ten years from his date
of purchase of the land in question.
6.1 Learned Advocate would also take this Court through the notice
issued by the petitioner on 15.01.2020 and would submit that as such, the
notice in question was raising objections against a development plan,
which had been issued by the State vide Notification dated 18.11.2019.
6.2 Learned Advocate would also submit that as such, the State had
also issued a communication dated 13.10.2020 to the respondent No.2
inter alia informing the respondent No.2 that reservation upon various
lands may not be viable, which includes the present land, yet, the
respondent No.2 vide their communication dated 05.06.2021 had inter
alia brought to the notice of the State Authorities that the land in question
may be required for a different purpose altogether. Learned Advocate
would submit that in response thereto, the State vide its communication
dated 15.05.2023 has sought for certain clarifications and the Urban
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Development Authority is in the process of replying to the queries of the
State.
6.3 Learned Advocate would submit that even though, at the first
instance, ten years may have passed after the development plan and the
land, which was designated in the development plan as having been
reserved for a certain purpose, may not be acquired even after a statutory
notice under Section 20(2) of the Act, yet, upon the plan being revised
under Section 21 of the Act, the effect of the statutory notice gets
extinguished and the land owner would have to wait for a period of ten
years from the date of the revised plan for issuance of the notice, if till
such time, the land is not acquired. Learned Advocate submitting that the
respondent No.2 having designated the land in question for various
purposes, the notice under Section 20(2) of the Act issued by the
predecessor-in-title of the petitioner being rendered nugatory, upon the
revised development plan coming into force as per the provisions of
Section 21 of the Act and for the reason that the petitioner himself has not
completed ten years as owner of the land in question when he had issued
the statutory notice, the petitioner is not entitled for the declaration as
sought for. Thus submitting, learned Advocate Mr. Nanavati would
submit that this Court may not entertain the present petition and may
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reject the same.
6.4 Learned Advocate Mr. Nanavati in support of his submissions
would rely upon a decision of a learned Coordinate Bench of this Court in
case of Deepakbhai J. Shah Vs. State of Gujarat and Others, reported
in 2005(1) GLR 373.
7. Learned Advocate Mr. Deep D. Vyas on behalf of the respondent
No.3 has also vehemently opposed the present petition and whereas it is
submitted that the respondent No.3, whom he represents, is a beneficiary
of the reservation and if the communication of the respondent- Urban
Development Authority to the State dated 05.06.2021 is perused, the land
may be required for a different kind of purpose altogether. Thus
submitting, learned Advocate Mr. Vyas would request this Court not to
entertain this petition.
8. The present petition is also vehemently opposed by learned AGP
Mr. Hardik Soni on behalf of the respondent-State, who would adopt the
contentions of learned Advocate Mr. Nanavati.
9. Heard learned Advocates for the respective parties and perused the
documents on record.
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10. The questions that arise for consideration of this Court are as
under:
(i) The effect of a notice issued under Section 20(2) of the Gujarat
Town Planning and Urban Development Act, 1976, by a land owner to
the authority, for whose benefit, his land has been reserved under the
provisions of the Act and that reservation has been continued under a
development plan, which is in force since last ten years.
(ii) Whether the subsequent purchaser of a land, which has been
reserved under a development plan for ten years or more and where the
owner or interested person issues notice under Section 20(2) of the Act
and steps are not taken by the development authority or the beneficiary
authority within six months thereafter and the transaction of sale being
post six months of the notice under Section 20(2), is required to wait for
another ten years from the date of purchase to issue a fresh notice under
Section 20(2) of the Act.
(iii) Whether upon the authority revising a development plan under
Section 21 of the Act, i.e. after a period of ten years from the date which
a final development plan comes into force, could a notice issued under
Section 20(2) of the Act, be rendered nugatory and ineffective.
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11. Before answering the above questions, at the outset, it would be
profitable to have a brief look on certain uncontested dates and events as
under :
(i) The respondent-State had issued Notification finalizing the
development plan in question on 31.01.1986 (which had come into effect
from 03.03.1986).
(ii) The land in question was reserved in the final development plan
published by the respondent No. 2 on 31.01.1986, for public purpose.
(iii) Since the respondent No.2 did not acquire the subject land by
agreement or under the provisions of the Land Acquisition Act, even after
ten years had been completed from the date of sanction of the
development plan, the predecessor-in-title of the petitioner had issued a
notice under Section 20(2) of the Act to the respondent No. 2 herein on
01.04.1996.
(iv) The respondent No.2 had even after a period of six months from
the date of service of notice referred to hereinabove, neither acquired the
land in question nor taken any steps in that regard.
(v) The Respondent No.2 had proposed revising the principal
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development plan and whereas the State had published the first revised
development plan, which came into force on 15.09.2004 and the said
development plan had expired on 14.09.2014.
(vi) Upon expiry of the first revised development plan, the respondent
No.2- Urban Development Authority proposing the second development
plan and inviting objections, the present petitioner (subsequent
purchaser), who had purchased the land in question vide registered sale
deeds dated 30.03.2015 and 11.05.2015, had submitted his objection-
cum-statutory notice under Section 20(2) of the Act, calling upon the
respondents to acquire the land in question.
(vii) The first development plan having expired on 14.09.2014, the
respondent No.2 had proposed the second development plan and
ultimately, the same had been published by the State Government vide
Notification dated 18.11.2019, which came into force on 08.10.2020.
12. Considering the factual matrix, from the perspective of the law laid
down by the Hon’ble Supreme Court as well as the Hon’ble Division
Bench of this Court, to this Court it would appear that the issues raised in
the present petition are covered by decision of the Hon’ble Division
Bench of this Court in case of Gujarat Housing Board (supra) as well
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as decision of the Hon’ble Supreme Court in case of Bhavnagar
University (supra). It would appear that identical issues which have been
raised in the present petition, had been raised before the Hon’ble Division
Bench of this Court and whereas relying upon decisions of the Hon’ble
Supreme Court, as well as the Hon’ble Division Bench of this Court, the
Hon’ble Division Bench (Hon’ble the Chief Justice R. Subhash Reddy
and Hon’ble Justice Vipul M. Pancholi, as Their Lordships then were)
had rejected the contention of the appellant therein, the beneficiary of the
reservation. Paragraphs No. 22 and 23 of the said decision being relevant
for the present purpose are reproduced hereinbelow for benefit.
“22. In the case of Hariben Meghajibhai Jasoliya and others
(supra), the Division Bench of this Court held in para 9 as under:
“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 rereservation 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.”
23. From the aforesaid decisions rendered by the Hon’ble Supreme
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Court as well as Division Bench of this Court, it is clear that
Sections 20 and 21 of the Act are required to be read conjunctively
with Section 17 of the Act. Section 21 of the Act imposes a
statutory obligation on the part of the State and the appropriate
authorities to revise the development plan and for the said purpose
Sections 9 to 20 ‘so far as may be’ would be applicable thereto, but
thereby the rights of the owners in terms of Section 20(2) of the
Act are not taken away. Section 21 does not envisage that despite
the fact that in terms of Section 20(2) of the Act, the designation of
land shall lapse, the same, only because a draft revised plan is
made, would automatically give rise to revival thereof. It is further
clear that Section 20 does not manifest a legislative intent to curtail
or take away the right acquired by the land owner under Section
20(2) of the Act of getting the land de-reserved. 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. 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. The right so
revived on account of the lapsing of the reservation under Section
20(2) of the Act would continue even after the re-reservation.
Thus, we are of the view that issue involved in the present appeals
is squarely covered by the aforesaid decisions rendered by the
Hon’ble Supreme Court as well as the Division Bench of this
Court.”
13. It would also be relevant to reproduce the observations made by the
Hon’ble Supreme Court in case of Bhavnagar University (supra), more
particularly observations at paragraphs No. 26, 27, 32, 33, 34, 36, 37, 38,
and 39, which are reproduced herein below for benefit.
“26. It is also well settled that a beneficent provision of legislation
must be liberally construed so as to fulfil the statutory purpose and
not to frustrate it.
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27. An owner of a property, subject to reasonable restrictions
which may be imposed by the legislature, is entitled to enjoy the
property in any manner he likes. A right to use a property in a
particular manner or in other words a restriction imposed on user
thereof except in the mode and manner laid down under the statute
would not be presumed.
xxx xxx xxx
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 East End Dwellings Co. Ltd. v. Finsbury Borough
Council [(1951) 2 All ER 587 : 1952 AC 109 (HL)] Lord Asquith,
J. stated the law in the following terms: (All ER p. 599 B-D)If you are bidden to treat an imaginary state of affairs as real,
you must surely, unless prohibited from doing so, also imagine as
real the consequences and incidents which, if the putative state of
affairs had in fact existed, must inevitably have flowed from or
accompanied it. One of these in this case is emancipation from the
1939 level of rents. The statute says that you must imagine a
certain state of affairs; it does not say that having done so, you
must cause or permit your imagination to boggle when it comes to
the inevitable corollaries of that state of affairs.
The said principle has been reiterated by this Court in M.
Venugopal v. Divisional Manager, LIC of India. See also Indian
Oil Corpn. Ltd. v. Chief Inspector of Factories, Voltas Ltd. v.
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Union of India, Harish Tandon v. ADM, Allahabad and G.
Viswanathan v. Hon’ble Speaker, T.N. Legislative Assembly.
34. The relevant provisions of the Act are absolutely clear,
unambiguous and implicit. A plain meaning of the said provisions,
in our considered view, would lead to only one conclusion, namely,
that in the event a notice is issued by the owner of the land or other
person interested therein asking the authority to acquire the land
upon expiry of the period specified therein viz. ten years from the
date of issuance of final development plan and in the event
pursuant to or in furtherance thereof no action for acquisition
thereof is taken, the designation shall lapse.
xxx xxx xxx
36. The question, however, is as to whether only because the
provision of Section 20 has been referred to therein; would it mean
that thereby the legislature contemplated that the time of ten years
specified by the legislature for the purpose of acquisition of the
land would get automatically extended? The answer to the said
question must be rendered in the negative. Following the principle
of interpretation that all words must be given their full effect, we
must also give full effect to the words “so far as may be” applied to
such revision.
37. The said words indicate the intention of the legislature to the
effect that by providing revision of final development plan from
time to time and at least once in ten years, only the procedure or
preparation thereof as provided therein, is required to be followed.
Such procedural requirements 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
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manifest a legislative intent to curtail or take away the right
acquired by a landowner 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 by taking
recourse to the provisions of the Land Acquisition Act. If by reason
of a revised plan, any other area is sought to be brought within the
purview of the development plan, evidently in relation thereto the
State will be entitled to exercise its jurisdiction under sub-section
(1) of Section 20 but it will bear repetition to state that the same
would not confer any other or further power upon the State to get
the duration of designation of land, which has been lapsed,
extended. What is contemplated under Section 21 is to meet the
changed situation and contingencies which might not have been
contemplated while preparing the first final development plan. The
power of the State enumerated under sub-section (1) of Section 20
does not become ipso facto applicable in the event of issuance of a
revised plan as the said provision has been specifically mentioned
therein so that the State may use the same power in a changed
situation.”
14. This Court would now answer the questions/issues raised
hereinabove, from the perspective of the law laid down by the Hon’ble
Division Bench as well as the Hon’ble Supreme Court.
15. Insofar as the first question is concerned, it would clearly appear
that the law as explained by the Hon’ble Supreme Court, and as reiterated
by the Hon’ble Division Bench of this Court, is absolutely clear inasmuch
as, upon a land owner or any person interested in the land issuing a notice
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under Section 20(2) of the Act, after a period of ten years from the date of
the final development plan coming into force and the land not being
acquired, then, the authority concerned, i.e. either the area developing
authority or any other authority for whose purpose the land is designated,
does not acquire the land or takes steps for acquisition, then a legal fiction
is created by the law which would entail the designation as having lapsed.
It would appear to this Court that the authority concerned, if it wants to
ensure that the designation of the land does not lapse, is either required to
acquire the land as it is or take steps for acquisition and whereas in case
no action is taken by the authority, then the consequences of the legal
fiction would follow i.e. the designation, lapsing.
16. Insofar as the second question is concerned, on facts, it would
appear as noticed hereinabove that the predecessor-in-title of the
petitioner had issued statutory notice under Section 20(2) of the Act on
01.04.1996, i.e. after ten years of the designation and whereas, within a
period of six months thereafter, passing from the date of issuance of the
notice, since the steps as laid down in the statute, i.e. either acquiring the
land or taking steps to acquire the land have not been taken by the
authority concerned, therefore the consequences thereof, i.e. the
acquisition having lapsed by virtue of the deeming fiction coming into
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play. To this Court it would appear that once a person who is either an
owner or a person interested in the land, gives a statutory notice as
required under the Act, and the authority concerned not taking any steps
as required, the designation would be treated to have lapsed. It would
necessarily imply that once the designation is treated to have lapsed, any
subsequent purchaser or any person acquiring interest in the land
thereafter, is not required to issue any fresh notice at all, rather on basis of
the notice originally issued by the predecessor-in-title or a person
interested, the subsequent right holder could seek for a declaration as
regards the designation having lapsed.
16.1 The law does not envisage that a designation which has lapsed on
account of the deeming fiction coming into play, would get revived upon
the owner of the land selling or transferring his rights. The legal position
as is axiomatic from the decision of the Hon’ble Supreme Court and the
decision of the Hon’ble Division Bench of this Court being that the
designation lapses, upon a notice issued under Section 20(2) of the Act,
after a period of ten years from the date of the final development plan
coming into force and the authorities not taking any steps for acquiring
the land within six months from the date of the notice. The authorities
concerned exercising powers under the very selfsame statute cannot be
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heard to say that since further steps are not taken by the land owner, the
designation will continue in force until a declaration is requested and
granted by a competent Court as regards the lapsing of the designation.
The authorities exercising powers under the statute are under an
obligation to give full effect to the statute and they could not be heard to
state that the designation would continue inspite of the statutory interdict.
16.2 Thus, in the considered opinion of this Court, if a land owner has
issued a notice under Section 20(2) of the Act and no steps as
contemplated in the Act, are taken by the authority concerned, then the
designation lapses and a successor-in-title would not be required to wait
for ten years from the date of his purchase to issue a notice under Section
20(2) of the Act, once again.
16.3 Relevant at this stage would be to refer paragraphs No. 40 and 42
of the decision of the Hon’ble Supreme Court in case of Bhavnagar
University (supra) :
“40. The statutory interdict of use and enjoyment of the property
must be strictly construed. It is well settled that when a statutory
authority is required to do a thing in a particular manner, the same
must be done in that manner or not at all. The State and other
authorities while acting under the said Act are only creature of
statute. They must act within the four corners thereof.
xxx xxx xxx
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42. We are not oblivious of the law that when a public functionary
is required to do a certain thing within a specified time, the same is
ordinarily directory but it is equally well settled that when
consequence for inaction on the part of the statutory authorities
within such specified time is expressly provided, it must be held to
be imperative.”
17. Insofar as the third question is concerned, from the decisions of the
Hon’ble Supreme Court and the Hon’ble Division Bench of this Court, it
is clear that once the designation of the land lapses in terms of Sub-
section 2 of Section 20 of the Act, yet, upon a draft revised plan being
made in terms of Section 21 of the Act, the designation would not revive.
As noticed by the Hon’ble Supreme Court as well as the Hon’ble
Division Bench of this Court, Section 20 of the Act does not manifest the
intent of the legislature to curtail the right available to a land owner to
have his land free from the designation, at any stage. The lapsing of the
designation by virtue of the deeming fiction coming into play, is final for
all purposes and the only option available to the State is, exercising the
power of eminent domain under the Land Acquisition Act, i.e. the Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, in the event the State wants to
use the land for any public purpose.
18. Insofar as the decision of Deepakbhai J. Shah (supra) relied upon
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by the learned Advocate for the respondent No.2, apart from not being
applicable to the facts, is a decision by a learned Co-ordinate Bench,
whereas this Court has relied upon a decision of the Hon’ble Apex Court
– in case of Bhavnagar University (supra) and of a Hon’ble Division
Bench, which is also relying upon the decision of Bhavnagar University
(supra) and is also a decision later than the decision of the learned Single
Judge, therefore, to this Court, the decision of the learned Co-ordinate
Bench in case of Deepakbhai J. Shah (supra) would not advance his
cause.
19. Thus, in view of the above discussion and observations, the
questions formulated above are answered as follows :
(i) Upon the owner of land/interested party, whose land is
reserved/designated, but not yet acquired after a period of ten years from
the date of the final development plan, issuing a notice under Section
20(2) of the Act, then the area development authority or the beneficiary
authority are required to take steps for acquisition within six months of
the date of notice, failing which, the deeming fiction would take effect
after 180 days of the receipt of the notice, resulting in the
reservation/designation being legally entitled to be treated as having
lapsed.
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(ii) As held above, after the owner or any person interested issues
notice under Section 20(2) of the Act, with regard to a land which is
reserved under a development plan and ten years elapsing post the
reservation/designation, and the development authority or the beneficiary
authority not taking any steps within six months of the notice, then the
reservation/designation is deemed to have elapsed. Any subsequent
purchaser is not required to issue a notice afresh under Section 20(2) of
the Act, rather the subsequent purchaser would be entitled to seek for the
land to be treated as free from any designation/reservation. The Act
certainly does not envisage that upon the ownership of such a land
changing hands, the deeming fiction would lapse and the land would be
again treated as being reserved/designated.
(iii) The Act does not envisage that a designation/reservation which is
deemed to have lapsed as per (i) above, would revive upon a draft revised
plan being made in terms of Section 21 of the Act. Once a
designation/reservation is deemed to have lapsed, the only option open
for the State is to invoke the power of ’eminent domain’ and acquire the
land under the Land Acquisition Act, i.e. the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act.
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20. Having regard to the above discussion, observations and
conclusion, the present petition is required to be allowed. It is declared
that the designation of the subject land, as having lapsed from 01.10.1996
and all the subsequent designations, more particularly the designation as
reserved for ‘Open Space and Garden’ and/or for public purpose, are to
be treated as null and void and the subject land is directed to be treated as
free from any designation/reservation of any kind whatsoever. The
petition stands disposed of as allowed. Rule is made absolute.
(NIKHIL S. KARIEL,J)
BDSONGARA
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