SHIVLAL K PUROHIT Vs. STATE OF GUJARAT

JUDGEMENT

(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.) 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.