IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2865 of 2012 with SPECIAL CIVIL APPLICATION No. 17330 of 2011 with SPECIAL CIVIL APPLICATION No. 3951 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE
MR.BHASKAR BHATTACHARYA
AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== SHIVLAL K PUROHIT & ORS.
Versus STATE OF GUJARAT & ORS.
========================================== =============== Appearance :
MR AMIT M PANCHAL with MR VIJAY NANGESH with MR JEET BHATT for Petitioners.
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGITA VISHER, ASST. GOVT. PLEADER for Respondent : 1 MR SATYAM CHHAYA for Respondent : 2 MR SHAILESH V RAVAL for Respondents 3-4 ========================================== =============== Date : 06/09/2012
COMMON CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. The main challenge in these three writ-petitions under Article 226 of the Constitution of India is the vires of Gujarat Regularisation of Unauthorised Development Act, 2011 and are, therefore, heard together and are disposed of by this common judgment. Special Civil Application No. 2865 of 2012 is taken up as the lead matter for discussion of facts.
2. In Special Civil Application No. 2865 of 2012, the petitioner challenges (i). The Gujarat Regularisation of Unauthorised Development Act, 2011 (Gujarat Act No. 26 of 2011) [“Act of 2011”, for brevity hereafter], (ii). The Gujarat Regularisation of Unauthorised Development Rules framed by State of Gujarat,[“the Rules” for brevity hereafter] through the Urban Development and Urban Housing Department vide Notification dated 18th February 2012, under section 17 of the Act of 2011, and, (iii). The Rates of Fees payable for Regularisation of Unauthorised Development and the manner of calculation, framed by State of Gujarat, through the Urban Development and Urban Housing Department vide Notification dated 18th February 2012, under section 7 of the Act of 2011 as being ultra vires the Constitution of India and opposed to the principles enunciated by the Supreme Court of India and various decisions referred to in the writ-petition. According to the writ-petitioner, the consequences of the aforesaid statutes would lead to a catastrophic and an irreparable situation and would, consequently, be detrimental to the welfare, safety and health of the citizens of the State of Gujarat, which is opposed to public interest. The petitioner contends that the aforesaid Regulation and Rules framed thereunder give unbridled and uncanalised power to the officers in respect of regularisation of developments without parking spaces and fire safety measures. The petitioner further complains that the aforesaid Regulation and the Rules compromise with the structural stability of the unauthorized construction which is hazardous to the safety and life of people. The petitioner further alleges that the aforesaid Act and the Rules framed thereunder do not fasten liability and accountability on the officers sanctioning and regularizing the unauthorized development, which would lead to rampant corruption. Further, according to the petitioner, the aforesaid statute does not set a time frame of the effect of the said Act, which would permit illegality for all time to come. The petitioner further contends that the said Act has been introduced to achieve political mileage and gain at the cost of law abiding citizens and makes a mockery of the law-abiding citizens, by protecting, supporting and aiding the illegal acts of selected few individuals, and is compromising with the safety of innocent law- abiding citizens.
3. By way of subsequent amendment, the writ-petitioner has also challenged the Gujarat Regularization of Unauthorized Development Rules, 2012 ['Rules of 2012'] by which the Government has modified the rate of impact fees that was to be charged for regularisation of unauthorized and irregular structures.
4. The above writ-petition has been opposed by the State of Gujarat by filing an affidavit-in-reply and thereby denying the allegations made in the application. The defence of the State- respondent may be summarised thus:
4.1 In the Gujarat Regularization of Unauthorized Development Act, 2001, [the Act of 2001, for short, hereafter] there was provision for regularisation of the buildings on the application of the occupier, regardless of the ownership issue whereas in the Act of 2011, authority has been given only to the legal owners to apply for regularization.
4.2 The Act of 2001 was applicable only to 6 Municipal Corporations and its vicinity areas whereas by the Act of 2011, the same has been made applicable to the areas under 18 Municipal Corporations and its vicinity areas and 130 other urban areas.
4.3 According to Section 8 of the Act of 2011, safety against fire is ensured.
4.4 The issue of parking could not be properly addressed in the Act of 2001 for the reason that the provisions of the Act of 2001 allowed to regularize a building only if a required parking was provided within the unauthorised development or at a distance of 500 mtrs. However, considering the past experiences, in the Act of 2011, the Committee is to examine the issue of parking in a wider context with several options.
4.5 The Act of 2001 could not ensure the process of controlling future unauthorised development whereas in the Act of 2011, under Section 16(3), the Government has to give directions for surveillance of unauthorised development and actions to be taken for being unable to control unauthorized developments.
4.6 According to clauses (a) and (b) of sub-section (3) of Section 8 of the Act of 2011 read with Rule 8 of the Rules, the Chief Fire Officer has to be consulted and only thereafter, any building is to be regularized. Such fact does not mean that the Act of 2011 renders provisions of fire safety almost nugatory. The National Building Code of India [NBC for brevity, hereafter] spells out provisions for the types of construction which ought to resist fire for 1 to 4 hours and provide preservation of adequate water with specific pressure to fight the fire. Based on the provisions of NBC and the objectives stated therein, the Chief Fire Officer or the Fire Personnel have deviced norms and protocols for the safety of building against fire and fire fighting.
4.7 For fire fighting, the objective of NBC is to make water available in adequate quantity and adequate pressure and it is not necessary that such possibilities would exist in case of buildings with 100% built- up area. According to NBC, each building must have an in-built fire protection mechanism. However, for limited period of fire occurrence, the municipal fire service has the appropriate arrangements of water through fire tenders.
4.8 The Chief Fire Officer is a professional who has adequate knowledge of NBC and other Codes of practices to make habitation safe against fire and is competent to have a fair assessment for risk of fire. Based on the above facts, the Chief Fire Officer, in each case before a building is regularised, is to give his suggestions as regards the measures relating to fire safety and thereafter, has to certify the compliance of such measures, as per sub-section (3) of Section 8 and Rule 8. In the light of the above, before regularizing the building, consultation with the Chief Fire Officer as laid down in sub-section (3) of Section 8 and Rule 8 is compulsory. Moreover, to ensure that the construction is fire-resistant, the owner/occupier has to furnish a certificate in Form D-2. The above certificate ensures compliance of fire provisions and should be signed by a qualified Engineer.
4.9 Section 10 of the Act of 2011 provides for sufficient guidelines as to the cases where a building can be regularized. A plain reading of sub-section (1) of Section 10 of the Act of 2011 clearly suggests that there are as many as 7 specified matters in respect of which the Designated Authority may regularize any unauthorised development. Apart from this, sub-section (2) of Section 10 of the Act of 2011 read with Rule 11 specify host of matters in respect of which the Designated Authority shall not regularize unauthorised developments. The said provisions are appropriately equipped with the checks and balances by introducing specific conditions, where regularization can be done and where regularization cannot be permitted. The powers conferred upon the authorities under the Act are, therefore, not unbridled and uncontrolled as contended by the petitioner.
4.10 As regards parking space, clause (vi) of sub-section (1) of Section 10 of the Act of 2011 makes provision for regularising parking. According to Rule 6, if the Designated Authority, after receiving reply from the owner or the occupier under Rule 5(4) of the Rules, is of the opinion that the unauthorised development cannot be regularized since it is not feasible for the owner or the occupier to provide, with respect to the actual built-up area, the required parking facility in the unauthorised development, the Designated Authority shall direct the owner or the occupier by an order to provide such facility at a suitable location within 500 mtrs. of such unauthorized development within a period of 6 months from the date of the order. In response to such an order, the applicant has to give a compliance report and in case where it is not feasible for the owner/occupier to provide such parking facility fully or partly, he shall send a report to the Designated Authority along with necessary evidence, documents etc. with regard to the genuineness of the efforts made by him to provide such parking facility. Thereafter, the Designated Authority shall send the report to the Committee constituted under Rule 12 of the Rules.
4.11 On account of rapid growth of economic opportunities in and around the major cities of Gujarat, there has been constant influx of the rural population to the urban areas resulting in steep increase in demand for properties for residential, commercial and other uses. This has resulted in hectic construction activities and several buildings so constructed do not conform to the existing building regulations. The owners and occupiers of such buildings have been given notices under the relevant legislations requiring them to remove, pull down or alter the buildings. However, removal or pulling down large number of buildings is neither feasible nor desirable, and such action if resorted to may give rise to the possibility of creating law and order problems apart from the fact that the same would cause hardship to a large number of people who would be rendered homeless and who would have to be provided with housing. Thus, the social and economic fabric of the Society would be disturbed leading to a chaotic situation in the society. To avoid such an eventuality, the intervention of the Government by enacting a suitable legislation became a compelling necessity, and, therefore, the Government enacted the Act of 2011.
5. C.G. Road Shop Owners Association, the added respondent No.2, has filed a separate affidavit-in-reply thereby supporting the State-respondent and opposing the writ-application.
6. Mr. Amit Panchal, the learned Advocate appearing on behalf of the petitioner, strenuously contended before us that by enacting the Act of 2011, the State-respondent seeks to violate the directions issued and the principles enunciated by this Court and other Courts in a series of judgments rendered from time to time and the said enactment is to cover-up the non-compliance of statutory obligations of the authorities of the State of Gujarat. According to Mr. Panchal, there has been a total disregard of law in the State of Gujarat and the inaction by the authorities have given rise to continuing illegalities. According to Mr. Panchal, due to the inaction on the part of the concerned authorities, the Builders, Developers, Owners, Occupiers, etc. are intentionally and blatantly defying the directions issued by this Court at the cost of law abiding citizens. Thus, according to Mr.
Panchal, the Act of 2011 and Rules framed thereunder are mala fide, and is a piece of colourable legislation, as it intends to nullify the judgments rendered by the Supreme Court of India and this Court from time to time in catena of cases. According to Mr. Panchal, it is a settled legal position that a legislature has no power to render ineffective the earlier judicial decisions by making a law, and such powers, if exercised, would not be the legislative power but an assumed power exercised by it which encroaches upon the judicial powers of the State exclusively vested in Courts.
6.1 Mr. Panchal contends that from a mere reading of the language of the Act of 2011 and the Rules framed thereunder, it becomes clear that it confers power of the widest amplitude upon the officers of the authorities with no inbuilt check. Mr. Panchal submits that such wide powers would lead to unscrupulous actions without considering its effect on the public at large. Mr. Panchal contends that the power conferred on the authorities are unbridled and uncontrolled in the absence of any guidelines, and it would lead to a catastrophic and unruly situation in the State of Gujarat. Mr. Panchal further contends that the exemption and relaxation sought to be brought by the introduction of the Act of 2011 and Rules thereunder basically and intrinsically violates the purpose of the statute rendering it unworkable, as they are inconsistent with the essence and the purpose of the statute. Mr. Panchal submits that the provisions of the Act of 2011 indicate that the authorities have been vested with unrestricted discretion in the matter of the choice in regularizing the unauthorized development and giving them an exemption from the statutory requirements and law, and such an unguided power bestowed by the State-respondent upon the authorities is opposed to Article 14 of the Constitution of India and requires to be struck down.
6.2 Mr. Panchal further submits that on 4th October 2000, this Court passed judgment directing the competent authorities to comply with the provisions of Bombay Provincial Municipal Corporations Act, 1949, and the Rules framed there under, and the General Development Control Regulations framed under the Gujarat Town Planning and Urban Development Act, 1976, thereby upholding the rule of law. In order to evade the implications and implementation of the order dated 4th October 2000, the State-respondent had enacted the Act of 2001 to regularize the unauthorized constructions. Mr. Panchal points out that the said Act was indisputably introduced as a temporary one- time-measure in the interest of general public to regularize the illegal constructions by payment of regularization fee which would be utilized for development of specific infrastructure. According to Mr. Panchal, the fact that the Act of 2001 is a one-time-measure had been reiterated and relied upon by State-respondent by way of an affidavit in Special Civil Application No. 3927 of 2001 filed by one Pranjivan Harjivan Parmar, party-in-person, against the State of Gujarat & Others, challenging the validity of Act of 2001.
6.3 Mr. Panchal points out that the following provisions of the Act of 2011 and the Rules made thereunder are opposed to law:-
[A]. Section 8(3) (a) & (b) of the Act of 2011 is opposed to and is in utter contravention of Part – IV of the NBC which provides for Fire Safety. The section 8(3) (a) & (b) of the Act of 2011 clearly defies and does away with the provision of adequate fire safety measures and compromises with public safety. On the one hand a provision is made in section 8 (2) (a) of the Act of 2011 which does not permit unauthorized development to be regularized if it is inconsistent with fire safety measures under the relevant law whereas, on the other hand, under section 8(3) (a) & (b) of the Act, it is provided that for the purpose of Regularisation of unauthorized development, the applicant could be directed to provide such fire safety measures, as may be specified in the direction within a period of 3 months which may be issued by the designated authority in consultation with the Chief Fire Officer of the Municipal Corporation, Area Development Authority or, as the case may be the Urban Development Authority. The aforesaid provision in section 8(3) (a) & (b) therefore, Mr. Panchal proceeds, renders provision of fire safety measures almost nugatory and sacrifices public safety as no norms as required under Part IV of the NBC are prescribed for making provision of Fire Safety measures which are mandatory and in public interest. Such an unfettered power bestowed upon the officers, in absence of any guideline, would be detrimental to the interest of society and would lead gross illegalities and arbitrariness.
[B]. Rule 6 of the Rules which deals with the provision of parking, in a very convenient manner, does away with the requirement of providing parking space to the occupiers and the visitors of the building under one pretext or the other for all time to time. The Act of 2011, therefore, on one hand makes a show of their being a mandatory requirement of providing parking space, and on the other hand, dispenses with parking requirement in entirety by constituting a Committee to decide the issue of non- availability of parking, without there being any fixed norms, rules or regulations prescribed under the Act or Rules. Rule 6 gives unfettered powers to the committee without fastening any liability upon the committee and without making parking mandatory. Such discrete and unfettered power conferred upon the Committee would open the grounds of corruption and would do away with the mandatory requirement of parking space in buildings. It is an admitted position that at the time of sanctioning of plans parking space is a mandatory requirement and that the plans cannot be changed at the discretion of the builder or occupier. Moreover, the Act and Rules have not been given a cut-off date and hence, the validity of the Act and Rules is till unlimited time in future, which would make other laws redundant and ineffective. In view of inadequate Fire Safety, Parking area, non-availability of common plot, unauthorized development, etc. all acts, rules, statutes would become ineffective and inoperative. The Act has been re-enacted after a period of 10 years in order to regularize unauthorized developments, which goes to show that the State of Gujarat and its authorities have failed in its statutory duties and has failed to control illegalities in the State of Gujarat. The introduction of two regularisation acts within a period of 10 years would inculcate a tendency of resorting to illegality and wrong-doing in the minds of the citizens of State of Gujarat and would not subserve the ends of justice. The introduction of the Act and its Rules would be opposed to Article 14 of the Constitution of India as it would treat equals unequally. The Supreme Court of India in the case of Nahalchand Laloochand Private Limited vs. Panchali Cooperative Housing Society Limited, reported in (2010) 9 SCC 536, has reiterated the principle that “common areas and facilities” cannot be sold by the promoter in lieu of money, even in a situation when there is a consent and agreement with the owners.. However, the Act of 2011 seeks to condone the illegality in lieu of fees, which is unconstitutional and illegal, as law is required to be obeyed and that there is no alternative to law.
[C]. Rule 9 of the Rules commits breach of essence and framework of the Gujarat Land Revenue Code 1879, by dispensing with requirement of taking a Non-Agricultural use permissions before making any development on an agricultural land. Such an action would lead to catastrophic situations, as such an action would lead to reduction of agricultural lands in the State of Gujarat. Doing away with obtaining of Non-agricultural permission and permitting developments which had never taken non-agricultural permission would send a wrong message in the society that law and legal provisions could be and would be given a go-by over a period of time and that wrong-doers would be protected by State machinery and that wrong actions would prevail over legality and law.
[D]. Fixing fees in lieu of increased height of the building as compared to the sanctioned plan, is opposed to the NBC and is detrimental to public safety and life. Height of the building has been guardedly and logically calculated by the authorities under the statute and hence, it is not in public interest to permit occupation and use of building which possesses a height more than the one specified in the sanctioned plan, as it would defy the structural stability of the building, which, in turn, may result in collapsing of the building. As the Act does not fasten responsibility or accountability upon its officers, it has virtually shifted the burden of responsibility from their shoulders, as the authorities are well aware of the hazard of such developments to public life and safety.
[E]. Schedule of Fees also prescribes a provisions for change of use and change of common plot in lieu of fees, which is illegal and contrary to the statutes and sanctioned plan of the unauthorized development. It is a settled legal position that once the Town Planning Scheme is sanctioned by the State Government under the Gujarat Town Planning and Urban Development Act, 1976, it attains finality and becomes an Act in itself, and hence, it cannot be amended, altered or modified by another piece of legislation. The Supreme Court has observed that the said aspect of Town Planning Scheme is not amenable to modification, alteration or amendment in the case of N. Nanalal Kiklawala and Anr. Vs. State of Gujarat and Ors reported in (2005) 12 SCC 649.
[F]. Rule 16 of the Rules of 2012, which deal with ‘liability’ clearly absolves the designated authority of any liability whatsoever, nor does any provision of the Act of 2011 and the Rules enacted thereunder make any officer accountable for any injury, damage or loss whatsoever that may be caused to any one in or around the area for the unauthorized development being regularized or after the same is regularized. The Act therefore, on the one hand seeks to regularize unauthorized development which was not permissible to have been made and/or carried out by the erring person/s, whereas on the other hand while seeking to regularize the illegal act, the authority does not want to take any kind of responsibility for the regularisation of the unauthorized development which was not in any manner permissible under the relevant laws, which was still carried out either in connivance with the officers of the authority, or with the blessings of the authority, for having turned a blind eye to the illegal act/s of carrying out unauthorized development contrary to law.
[G]. The Act of 2011 and the Rules have not been given a cut-off date and hence, the validity of the Act and Rules is till uncertain point of time, which would make other laws redundant and ineffective. In view of inadequate Fire Safety, Parking area, non- availability of common plot, unauthorized development, etc., all Acts, rules, statutes would become ineffective and inoperative. The Act has been re-enacted after a period of 10 years in order to regularize unauthorized developments, which goes to show that the State of Gujarat and its authorities have failed in its statutory duties and has failed to control illegalities in the State of Gujarat. The introduction of two regularisation Acts within a period of 10 years would inculcate a tendency of resorting to illegality and wrong-doing in the minds of the citizens of State of Gujarat and would sub-serve the ends of justice. The introduction of the Act of 2011 and its Rules would be opposed to Article 14 of the Constitution of India as it would treat equals unequally. The Supreme Court of India, in the case of Nahalchand Laloochand Private Limited vs. Panchali Cooperative Housing Society Limited, reported in (2010) 9 SCC 536, has reiterated the principle that “common areas and facilities” cannot be sold by the promoter in lieu of money, even in a situation when there is a consent and agreement with the owners.
[H]. The introduction of the Act of 2011 in the light of the fact that the Act of 2001 was a one-time-act amounts to re-promulgation of an already existing legislation to meet political ends, without effectively administering the previously enacted identical legislation on account of lack of political will and amounts to a blatant contravention of the principles and guidelines laid down by the Supreme Court in the case of D. C. Wadhwa & Ors. vs. State of Bihar & Ors., reported in 1987 SCC (1) 378.
[I]. The introduction of the Act in essence is, an open contempt wherein the contemnor would enjoy the fruits of his contempt. This is in violation of the decision of this Court in Mohd. Idris
v. Rustam Jehangir Babuji, reported in (1984) 4 SCC 216.
[J]. The Act seeks to give a go-by to the statutory requirement of following the procedure prescribed under the BPMC and GDCR which has been reprimanded by this Court, in the case of Ahmedabad Municipal Corporation v. Vijay Owners’ Association, reported in 2000 (3) GLR 2505.
[K]. The Act of 2011 and the Rules framed thereunder are opposed to and in contravention to the judgment rendered and directions issued by the Supreme Court of India in the case of R. K. Mittal versus State of Uttar Pradesh and others reported in 2012
(2) SCC 232, wherein the Supreme Court of India has observed that environmental impact, convenience of the residents and ecological impact are relevant considerations for the courts while deciding such an issue and that law imposes an obligation upon the Development Authority to strictly adhere to the plan, regulations and the provisions of the relevant statute. Thus, it cannot ignore its fundamental duty by doing acts impermissible in law and that the concept of public accountability and performance of public duties in accordance with law and for the larger public good are applicable to the statutory bodies as well as to the authorities functioning therein. There cannot be any justification, whatsoever, for the authorities to act arbitrarily in treating equals who are similarly placed as unequals and that a few officers of the Development Authority cannot collectively act in violation of the law and frustrate the very object and purpose of the Master Plan in force, the Regulations and provisions of the relevant statute. The Supreme Court of India
has inter-alia also observed that the Master Plan and the zonal plan specify the use of a particular piece of land and therefore these plots cannot be used for any other purpose than specified. The plans have a binding effect in law. If the scheme/master plan is being nullified by arbitrary acts and in excess and derogation of the power of the Development Authority under law, the Court should intervene and should direct such authorities to take appropriate action and wherever necessary even quash the orders of the public authorities.
7. Mr. Trivedi, the learned Advocate General appearing on behalf of the State-respondent, on the other hand, has opposed the aforesaid contentions of Mr. Panchal. Mr. Trivedi has asserted that the Act of 2011 is enacted by the State legislature which has the requisite competence in terms of List II of the Seventh Schedule of the Constitution, and thus, the only ground on which this Court can declare the said statute as ultra vires the Constitution is that it must be in conflict with any of the provisions of Part III of the Constitution of India. According to Mr. Trivedi, when a statute encroaches upon the civil right and civil liberties mentioned in Part III of the Constitution of India, such as, the freedom of speech, freedom of movement, equality before law, liberty, freedom of religion etc, the Court should not grant such latitude to the legislature as it gives in the cases of economic measures, but will carefully scrutinize whether the legislation on these subjects is violative of the rights and liberties of the citizens, and the court's approach must be to uphold those rights and liberties. Otherwise, according to Mr. Trivedi, this Court, sitting in writ- jurisdiction under Article 226 of the Constitution of India cannot declare the Act of 2011 as ultra vires. According to Mr. Trivedi, the legislature is competent to repeal an earlier law on the field and can enact a new law, which is inconsistent with the earlier law. According to Mr. Trivedi, the object of the Act of 2011 is to legalize those deviations, which are not serious in nature, and which do not interfere with the security measures as indicated in the Act of 2011. Mr. Trivedi contends that a legislature is entitled to legalize unauthorized construction on certain conditions which do not affect the security of any of the citizens. In support of such contention Mr. Trivedi relies upon the decisions of the Supreme Court in the case of GOVERNMENT OF ANDHRA PRADESH AND OTHERS v. P. LAXMI DEVI reported in (2008) 4 SCC 720 and in the case of CONSUMER ACTION GROUP v. STATE OF T.N. reported in (2000) 7 SCC 425.
7.1 Mr. Trivedi, in this connection, took us through the provisions of the Act of 2011 and pointed out that by the said Act, unconditional regulairzation of unauthorised construction has not been incorporated but a detailed provision has been made for regularization keeping in view the safety and security of the inhabitants of the building and the public in general. Mr. Trivedi further submits that even the aspect of fire safety has been well taken care of in the Act of 2011 and simply because it is inconsistent with the existing relevant law, for that reason, the same cannot be held to be ultra vires because by way of the Act of 2011, no authority has been given to violate the provisions of the existing relevant law in future. Mr. Trivedi further points out that only in respect of constructions done during a specific period in violation of the Town Planning Act have been permitted to be regularized and that too, on payment of regularization fee and on taking other precautionary measures. Mr. Trivedi, therefore, prays for dismissal of the writ-application.
8. Mr. Joshi, the learned Senior Advocate appearing on behalf of the respondent No.2 has adopted the submissions made by Mr. Trivedi, the learned Advocate General.
9. Therefore, the question that falls for determination in this writ- application is whether the Act of 2011 should be declared as ultra vires the Constitution of India.
10. Before entering into the above question, we propose to refer to the following observations made in a recent decision of the Supreme Court in the case of State of Madhya Pradesh vs. Rakesh Kohli and another reported in (2012) 6 SCC 312 wherein the Apex Court considered various earlier decisions of the said court laying down the circumstances in which a writ-court can declare a statutory provision as ultra vires:
“24. While dealing with the aspect as to how and when the power of the court to declare the statute unconstitutional can be exercised, this Court referred to the earlier decision of this Court in Rt. Rev. Msgr. Mark Netto v. State of Kerala [(1979) 1 SCC 23] and held in para 46 of the Report as under: (P. Laxmi Devi case, [(2008) 4 SCC 720] SCC p. 740) “46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament can make under Schedule VII List I, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto v. State of Kerala [(1979) 1 SCC 23], SCC para 6 : AIR para 6. Also, it is none of the concern of the court whether the legislation in its opinion is wise or unwise.”
Then in paras 56 and 57 the Court stated as follows: (P. Laxmi Devi case [(2008) 4 SCC 720], SCC p.744) “56. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimisation of the Judges’ personal preferences. The court must not invalidate a statute lightly, for, as observed above, invalidation of a statute made by the legislature elected by the people is a grave step. As observed by this Court in State of Bihar v. Kameshwar Singh [AIR 1952 SC 252] (AIR p. 274, para 52) ‘52. … The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence….’ 57. In our opinion, the court should, therefore, ordinarily defer to the wisdom of the legislature unless it enacts a law about which there can be no manner of doubt about its unconstitutionality.”
25. The Constitution Bench of this Court in Mohd. Hanif Quareshi v. State of Bihar [AIR 1958 SC 731] while dealing with the meaning, scope and effect of Article 14, reiterated what was already explained in earlier decisions that to pass the test of permissible classification, two conditions must be fulfilled, namely,
(i). the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and
(ii). such differentia must have rational relation to the object sought to be achieved by the statute in question.
The Court further stated that classification might be founded on different basis, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
26. In Mohd. Hanif Quareshi [AIR 1958 SC 731], the Constitution Bench further observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. It stated in para 15 of the Report as under: (AIR pp. 740-41) “15. … The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.”
27. The above legal position has been reiterated by a Constitution Bench of this Court in Mahant Moti Das v. S.P. Sahi [AIR 1959 SC 942]
28. In Hamdard Dawakhana v. Union of India [AIR 1960 SC 554], inter alia, while referring to the earlier two decisions, namely, Bengal Immunity Co. Ltd. [AIR 1955 SC 661] and Mahant Moti Das [AIR 1959 SC 942], it was observed in para 8 of the Report as follows: (Hamdard Dawakhana case [AIR 1960 SC 554], AIR p. 559) “8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy….”
In Hamdard Dawakhana, the Court also followed the statement of law in Mahant Moti Das and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India [AIR 1951 SC 318] and State of Bombay v. F.N. Balsara [AIR 1951 SC 318] and reiterated the principle that presumption was always in favour of constitutionality of an enactment.
29. In one of the recent cases in Karnataka Bank Ltd., [(2008) 2 SCC 254] while referring to some of the above decisions, in para 19 of the Report, this Court held as under: (SCC pp. 262- 63) “19. The rules that guide the constitutional courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; ‘to doubt the constitutionality of a law is to resolve it in favour of its validity’. Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. (See State of Bombay v. F.N. Balsara. [AIR 1951 SC 318])”
11. Bearing in mind the aforesaid principle laid down by the Supreme Court, we now propose to consider whether the Act of 2011 is ultra vires the Constitution of India.
12. As it appears from the Preamble of the Act of 2011 that it is described as follows :-
“An Act to regularise the unauthorized development in development areas in the State and for matters connected therewith or incidental thereto. WHEREAS there has been unauthorized developments in the city of Ahmedabad and development areas in the State, on a large scale; AND WHEREAS such unauthorized developments are liable to be removed and pulled down; AND WHEREAS by removal and pulling down of such unauthorized developments, hardship to a large number of people is likely to be caused; NOW, THEREFORE, it is expedient to have a law to provide for regularization of certain unauthorized developments. It is hereby enacted in the Sixty-second Year of the Republic of India as follows: “
13. In the Act of 2011, Section 8 provides for the circumstances in which an unauthorized development shall not be regularized. Similarly, Section 10 of the Act provides for the circumstances in which unauthorized development may be regularized. According to Section 11, on regularization of unauthorized development as provided in the Act, all court cases or other proceedings, filed by the appropriate authority or the occupant or the owner or otherwise and pending in any court in so far as they relate to such unauthorized development, shall stand abated. It is further provided that any decision under the Act shall not deemed to have decided the ownership of the unauthorized development. Section 12 of the Act provides for appeal against the order or decision of the designated authority either allowing or refusing regularization. Section 15 of the Act makes it clear that regularization of unauthorized development under the Act of 2011 shall be without prejudice to any civil or the criminal liability to which an applicant may be subject to under any law for the time being in force. Section 18 of the Act provides that the provisions of the Act shall have overriding effect notwithstanding anything contained in any other law for the time being in force, in so far as the regularization of unauthorized development is concerned and by Section 19, the Act of 2001 has been repealed.
14. According to Section 5 of the Act, notwithstanding anything contained in the relevant law or in the order issued or the decision taken under the relevant law, directing removal, pulling down or alteration of unauthorized development, or discontinuance of any use of land or building, the designated authority under the Act shall either suo motu or otherwise, within six months from the commencement of the Act or within such period as may be extended by the State Government by order in writing, serve on the owner or occupier a notice in the manner as may be prescribed and directing him to furnish such particulars or documents as the designated authority deem necessary. The proviso to the said section indicates that any applicant who has been served with the notice under the relevant laws as provided in sub-section (1), or not, may make an application in the manner as prescribed to the designated authority for regularization of any unauthorized development within the period of six months from the commencement of the Act or within such period as may be extended by the State Government.
15. According to Section 6 of the Act of 2011, on receipt of the reply to the notice or the application made by the applicant under Section 5, the designated authority shall, within a period of eighteen months or such period as may be extended by the State Government by an order in writing, scrutinize the same and after making such inquiry at as it may deem fit, is of the opinion that the unauthorized development can be regularized, shall pass an order requiring the applicant to pay fees, if any, payable under the relevant laws and the fees payable under the Act for regularization of unauthorized development. On payment of such fees, as provided above, within a specified time, the designated authority shall pass an order regularizing the unauthorized development, wholly or partly, with or without conditions, in the form and manner as may be prescribed. On the other hand, if on scrutiny of the reply to the notice or the application of the applicant and after making an inquiry, the designated authority is of the opinion that the unauthorized development cannot be regularized, it shall pass an order, within eighteen months of such reply to notice or application, refusing to regularize such unauthorized development, stating the grounds therefore in the prescribed form and manner.
16. We have gone through the provisions contained in Section 8 of the Act where the circumstances in which unauthorized development should not be regularized have been enumerated. According to the said section, any unauthorized development shall not be regularized where the unauthorized development is carried out on any of the following lands :-
(a) land belonging to Government, local authority or statutory body;
(b) land acquired or allotted by the Government, local authority or statutory body for a specific purpose
(c) land under alignment of roads indicated in development plan or a town planning scheme or under alignment of a public road;
(d) land designated or reserved under a development plan or a town planning scheme;
(e) lands till regularized as provided in section 9;
(f) water courses and water bodies like tank beds, river beds, natural drainage and such other places;
(g) areas earmarked for the purpose of obnoxious and hazardous industrial development.
17. Sub-section (2) of Section 8 further prescribes that an unauthorized development shall not be regularized if the same is inconsistent with fire safety measures under the relevant law or structural stability requirements are per the G D C R. Sub-section (3) of Section 8 provides for certain conditions for regularization of unauthorized development.
18. Section 10 of the Act authorizes the designated authority to regularise unauthorized development in respect of the following matters :-
(i). Ground Coverage,
(ii). Built up area,
(iii). Height of Building,
(iv). Change of use,
(v). Common plot, and
(vi). Parking, subject to the condition that the occupier or owner shall provide parking as per GDCR in unauthorized development and where it is not so feasible, in a place owned or occupied by himself or more than one applicant, within such distance not exceeding five hundred meters from the unauthorized development as directed by the designated authority within a period of six months from such direction. However, in the event of non-compliance of the aforesaid directions for any reason, the Designated Authority shall refer matter to the Committee as may be constituted by the State Government by rules and such committee after making such inquiry as it deems fit, will suggest suitable options which shall be taken into consideration by the Designated Authority for the purpose of implementation;
(vii). Sanitary facility, subject to the condition that the designated authority is satisfied that the sanitary facility provided is adequate;
(viii). Such other matters which the State Government may, prescribe.
19. Sub-section (2) of Section 10, however, maintains that the designated authority shall not regularise unauthorized development in respect of the following matters :-
(a) having such floor space index which the State Government may prescribe;
(b) projections beyond the plot boundary;
(c) the change of use which in the opinion may cause danger to health or lead to health hazard;
(d) falling under the alignment of means of water supply, drainage, sewerage, supply of electricity or gas or of any other public utility service; and
(e) such unauthorized development which the State Government may, prescribe.
20. After going through the aforesaid provisions of the Act, we find that the State Legislature was well aware of the fact that in the past there has been unauthorized development in the city of Ahmedabad and development areas of the State on a large scale and although those are liable to be demolished in accordance with the relevant laws of the land, removal or pulling down of such unauthorized development would cause hardship to a large number of people and, therefore, a chance has been given for regularization on conditions indicated therein. From the above provisions of law, it appears that while making the provisions of regularization, it has not compromised with fire safety measures under the relevant law and structural stability requirements as per the GDCR.
21. Such being the position, we find no substance in the contention of Mr Panchal that the proposed amendment is opposed to fire safety measures provided under the existing law.
22. As pointed out by the Supreme Court in the cases mentioned by us in this judgment, the Legislature contains representatives of people elected by it and authorized by the people to enact laws. In the case before us, there is no dispute that the State Legislature had the required competency over the subject matter. If State Legislature on consideration of the situation prevalent in the State, decides to regularise unauthorized construction without compromising with the safety measures provided under other existing law, in our opinion, the same cannot be said to be violative of Article 21 of the Constitution of India.
23. We do not find any substance also in the contention of Mr Panchal that the same is violative of Article 14 of the Constitution of India. It has laid down criteria for regularization and the classes of people who are entitled to get such benefit. In those conditions, there is no inequality or want of equal protection of law among the same classes of citizens.
24. Simply because the mode of regularization adopted by the State Legislature could be made in a better way or in a stricter way, for that reason, this Court sitting in a jurisdiction under Article 226 of the Constitution cannot declare it as ultra vires. Once legislative competency is established and at the same time, it does not violate any of the provisions of Part-III of the Constitution, there is no scope of declaring the same as ultra vires. It is not even the object of the Act of 2011 to continue with violation of the existing law of the land and its applicability is restricted only to a specific unauthorized construction for a limited period where the government could not tackle the situation.
25. If the Legislature of the State decides to condone the act of violation made by the citizens on payment of penalty without compromising with the safety measures of the people, we are of the view, there is no scope of interference with the enactment concerned.
26. In our opinion, a law, which subject to some conditions being fulfilled, seeks to classify certain activities of the citizen as legal which were previously branded as illegal, cannot be said to be in violation of Article 14 if there is no discrimination amongst the beneficiaries of such law. We also do not find any substance in the contention of Mr Panchal, the learned advocate for the petitioner that Legislature has no right to repeatedly condone unauthorized construction for the purpose of favouring a class of persons who consistently defied the law. No doubt such act may amount to giving benefit to a law breaker but for that reason alone, a Court is not vested with power to declare an Act as ultra vires. The Legislature has right to enact a law by giving benefit to a particular class of people without giving such benefit to another class, provided such benefit is granted based on proper classification. A Legislature in its wisdom can decide to declare an existing law as no longer valid and instead of that may add new definition in the existing Act. It is beyond the province of a writ-Court to demand explanation from the Legislature for enactment of a particular legislation nor can the writ- Court modify the same on the ground that according to the Court, a better option was available. As pointed out by the Supreme Court in the case of Maneka Gandhi vs. Union of India reported in (1978) 1 SCC 248 unless a classification made by the Legislature is patently arbitrary, there is presumption in favour of validity of the enactment. In the case before us, the ground of regularization cannot be said to be absurd. Only thing that can be complained is that it is inconsistent with the existing law which has been violated. We have already pointed out that in a given situation for the purpose of solving the problem arising out of mass violation of existing law, the Legislature is vested with the power to tackle the situation by enacting this type of Regularisation Act which is not unknown in the field of legislation.
27. We thus find that the Act of 2011 cannot be struck down as ultra vires any of the provisions of the Constitution of India for the reasons assigned by us above. The writ-applications are thus dismissed. No costs.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]