LexBHIKHUBHAI VITHLABHAI PATEL & ORS. versus STATE OF GUJARAT & ANR.
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[2008] 4 S.C.R. 1051 ).., BHIKHUBHAI VITHLABHAI PATEL & ORS. A '( v. STATE OF GUJARAT & ANR. (Civil Appeal No. 2000 of 2008) MARCH 14, 2008 B [S.H. KAPADIA AND B. SUDERSHAN REDDY, JJ.] >- 1' Gujarat town Planning and Urban Development Act, 1976 - s. 17 (1) (a) (ii) proviso ands. 12 (2) (o) - ReseNation of land by Development Authority for residential purpose - State c Government reseNing the same for South Gujarat University - Failure to acquire the land - Re-reseNation thereof for the same purpose - Struck down by Supreme Court - State Government modifying the re-reseNation and designating the land for educational use - Propriety of - Held: State D Government has wide powers in the matter of the draft ~ r development plan - However, substantial modification therein is permissible only when it is after forming an opinion therfor on the basis of the material sent along with the draft plan - The order of the State Government designating the land for E educational use having been passed without formation of honest opinion, is ultra vires and void -Such designation cannot be said to be in public interest as the same is not suggested by the records and has been explained subsequently - Public orders made in exercise of statutory F ' authority, cannot be construed in the light of subsequent ,....,, explanations - When the formation of opinion is challenged, it is open to court to decide the arbitrariness of such opinion - The land to be utilized for residential purposes - Judicial Review. The respondent-Authority included the land of the G appellant in the residential zone. State Government reserved it for the purpose of 'South Gujarat University'. The Authority for whose benefit the land was acquired 1051 H 1052 SUPREME COURT REPORTS [2008] 4 S.C.R. A failed to acquire the land leading to re-reservation of the land for the very same purpose which was ultimately struck down by Supreme Court. Thereafter State Government in exercise of its power conferred u/s 17 (1) (ii) (2) of Gujarat Town Planning and Urban Development B Act, 1976 modified the re-reservation by designating the land for educational use u/s 12 (2) (o) of the Act vide preliminary Notification. Final Notification was issued giving effect to that. The preliminary as well as final Notifications were challenged by the appellant by way of C writ petition. High Court allowed the writ petition. LPA was filed thereagainst. Division Bench of High Court dismissed the cross objections preferred by the appellants. Hence the present appeal. D Allowing the appeal, the Court HELD: 1.1 Indeed a very wide power is conferred upon the State Government in the matter of sanctioning of the draft development plan.The power conferred by Section 17(1 )(a) (ii) read with proviso is a conditional power. It is not an absolute power to be exercised ·in the E discretion of the State Government. The condition is formation of opinion - subjective, no doubt - that it had become necessary to make substantial modifications in the draft development plan. This opinion may be formed on the basis of material sent along with the draft F development plan or on the basis of relevant information that may be available with the State Government. The existence of relevant material is a pre-condition to the formation of opinion. [Paras 19 and 23] [1065-D; 1066-G; 1067-A] G 1.2 Opi~ion to be formed by the State Government cannot be on imaginary grounds, wishful thinking, however, laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material disclosing that H a necessity had arisen to make substantial modifications \. BHIKHUBHAI VITHLABHAI PATEL & ORS. v. STATE OF 1053 GUJARAT &.ANR. in the draft development plan. [Para 24] [1067-D, E] A 1.3 The expression: "so considered necessary" as . occur ring in proviso to s. 17 (1) (a) (ii) is of crucial importance. The term "consider" means to think over; it connotes that there should be active applicat!on of the mind. In other words the term "consider" postulates B 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 formation of the opinion by the State C Government should reflect intense' application of m
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