Gujarat High Court
Jahid Husen Isufali Makda vs State Of Gujarat & on 28 August, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/15750/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15750 of 2017
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JAHID HUSEN ISUFALI MAKDA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ANKUR Y OZA, ADVOCATE for the Petitioner(s) No. 1
MS NISHA THAKOR, ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 28/08/2017
ORAL ORDER
1. RULE. Learned AGP, Ms. Thakor, waives service of rule for the Respondents.
2. With the consent of learned Counsels on both the sides, this matter is taken-up for final hearing at the admission stage.
3. This is a petition under Articles 226 and 227 of the Constitution of India, challenging the show-cause notice issued by Respondent No.2- Mamlatdar, Palitana, District: Bhavnagar, under Section 61 of the Gujarat Land Revenue Code, 1879 (for short, 'the Code'), with a further prayer to quash and set aside the proceedings initiated by Respondent No.2-Mamlatdar, Palitana, District:
Bhavnagar.Page 1 of 12
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4. The brief facts leading to the present petition are as follows:
The petitioner is a member of the Dawoodi Bohra Community, which is a sect within the Ismaili branch of Shia Islam. The petitioner is the Secretary of the Kabrastan Committee formed by the Dawoodi Bohra Jamat, Palitana, which is a Wakf registered Trust vide Registration No. B-12, Bhavnagar. This Committee looks after the management and affairs of the cemetery property and the rituals to be performed there. The land in question is used as cemetery for those, who belong to Dawoodi Bohra Community.
5. It is the case of the petitioner that for maintenance of entire property, it was proposed to use a part of the said land to generate income. Therefore, the land admeasuring 500 sq.mts. is separated for raising certain commercial structure. A notice came to be issued by the Chief Officer, Palitana Municipality, dated 17.04.2017 to the Trustee, questioning their act of construction on the land of cemetery, without obtaining any permission from the authority concerned.
6. Respondent No.2 issued notice on 27.07.2017, under Section 61 of the Code, Page 2 of 12 HC-NIC Page 2 of 12 Created On Fri Sep 08 23:04:47 IST 2017 C/SCA/15750/2017 ORDER questioning the construction being carried out on the government waste land bearing Revenue Survey No. 498/17/1 and it is alleged further that the petitioner has encroached upon the land, which, otherwise, belongs to the Palitana village. It also Directed the stay of further construction on the said land.
7. It is the case of the petitioner that such action on the part of Respondent No.2 is wholly without jurisdiction and ex facie illegal. Before initiating any proceedings under Section 61 of the Code, Respondent No.2 ought to have verified, whether, the land, in fact, belongs to Government. Any initiation of the proceedings without such verification is bad in law. Moreover, according to the petitioner, for maintenance of the entire parcel of the land, the committee has decided to set aside a parcel of land for generating income. The Committee is pursuing the matter with Municipality for getting the construction regularized.
8. The aggrieved petitioner is, therefore, before this Court, seeking following reliefs:
"7. ...
(a) The honourable court be pleased to issue appropriate writ, direction or order to declare that the Page 3 of 12 HC-NIC Page 3 of 12 Created On Fri Sep 08 23:04:47 IST 2017 C/SCA/15750/2017 ORDER proceedings of case bearing no.
Land/Palitana/encroachment/Case/4/20 17 initiated and conducted by the respondent No.2 under section 61 of the Gujarat Land Revenue Code, 1879, against the petitioner are without jurisdiction, without authority, illegal, arbitrary, unconstitutional, perverse and null and void;
(b) The honourable court be pleased to issue appropriate writ, direction or order to quash and set aside the proceedings of case bearing no.
Land/Palitana/encroachment/Case/4/20 17 initiated and conducted by the respondent No.2 under Section 61 of the Gujarat Land Revenue Code, 1879;
(c) The honourable court be pleased to issue appropriate writ, direction or order to stay the proceedings of case bearing no.
Land/Palitana/encroachment/Case/4/20 17 initiated and conducted by the respondent No.2 under Section 61 of the Gujarat Land Revenue Code, 1879;
(d) The honourable court be pleased to pass order/s for ex-parte ad-interim or interim relief in terms of paragraph (c) above;
(e) ..."
9. Learned Advocate, Mr. Ankur Oza,
appearing for the petitioner has vehemently urged that the exercise of powers by Respondent No.2 is bad in law. He also, from the material on record, pointed out that the land belongs to the Dawoodi Page 4 of 12 HC-NIC Page 4 of 12 Created On Fri Sep 08 23:04:47 IST 2017 C/SCA/15750/2017 ORDER Bohra community and is meant for the purpose of cemetery. He, further, urged that it is premature on the part of Respondent No.2 to jump to any conclusion and initiate proceedings, unauthorizedly, when it is not being proved that the land belongs to the government.
10. Learned AGP, Ms. Thakor, has urged this Court not to interfere at the stage of show-cause notice. She urged that notice dated 27.07.2017 is issued to an individual, namely Jahid Hussain Yusufali Mankda, who claims to be the Secretary of the Committee. According to her, the land, when is allotted for a specific purpose, if, is put to use for any other purpose other than the specified , Respondent No.2 has authority under Section 61 of the Code to initiate proceedings against such unauthorized use. She also urged that no permission from any authority has been sought by the petitioner, and therefore also, there is no reason for interference. It is her say that under the law, other authorities are there, if, the petitioner is otherwise aggrieved by the action of Respondent authority, and therefore also, in wake of the efficacious, alternative remedy being available, this Court need not interfere. The exercise of powers is strictly in accordance with the law by Respondent No.2.
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11. Having heard the learned Advocates on both the sides, this Court notices that the applicant has approached this Court against a show-cause notice. The main thrust of the argument on the part of the petitioner is unauthorized, illegal exercise of powers under Section 61 of the Code by Respondent No.2. It would be apt, at this stage, to refer to the very provision:
"61. Penalties for unauthorized occupation of land. [Any person who shall unauthorizedly enter upon occupation of any land set apart for any special purpose, or any unoccupied land which has not been alienated, and any person who uses or occupies any such land to the use or occupation of which by reason of any of the provisions of this Act he is not entitled or has ceased to be entitled shall,] if the land which he unuathorizedly occupies forms part of an assessed survey number, pay the assessment of the entire number for the whole period of his [unauthorized] occupation, and if the land so occupied by him has not been assessed, such amount of assessment as would be leviable for the said period in the same village on the same extent of similar land [used for] the same purpose; and shall also be liable, at the Page 6 of 12 HC-NIC Page 6 of 12 Created On Fri Sep 08 23:04:47 IST 2017 C/SCA/15750/2017 ORDER discretion of the Collector, to a fine not exceeding [one per cent of the prevalent annual statement of rate (Jantri) as may be notified by the State Government from time to time,] if he has take up the land for purposes of cultivation, and not exceeding such limit as may be fixed in rules [***] made in this behalf under section 214, if he has [used it for] any non-agricultural purpose.
The Collector's decision as to the amount of assessment payable for the land unauthorizedly occupied shall be conclusive, and in determining its amount occupation for [a portion] of year shall be counted as for a whole year.
The person unauthorizedly occupying any such land may be summarily evicted by the Collector, and any crop [***] raised in the said land shall be liable to forfeiture, and any building or other construction, [***] erected thereon shall also, if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture, [or to summary removal].
Forfeitures under this section shall be adjudged by the Collector, and any property so forfeited shall be disposed of as the Collector may direct [and the cost of the removal of any encroachment under this section shall be recoverable as an arrear of land revenue.]"
12. It is the case of the petitioner that the land belong to the Dawoodi Bohra Community Page 7 of 12 HC-NIC Page 7 of 12 Created On Fri Sep 08 23:04:47 IST 2017 C/SCA/15750/2017 ORDER and it is given for a specific purpose of being used as a cemetery. This provision provides that any person, who unauthorizedly enters or occupies any land set apart for any special purpose or any unoccupied land, which has not been alienated, and any person who uses or occupies any such land to the use or occupation of which by reason of any of the provisions of this Act he is not entitled or has ceased to be entitled, there can be penalty leaviable for such unauthorized occupation. Thus, any encroachment on a public land belonging to the Government could be removed through this provision and also, if, the land is unauthorizedly occupied or used by any person, if, otherwise, is kept for any specific purpose, initiation of the proceedings by the competent authority cannot be said to be without jurisdiction or in illegal exercise of the powers.
13. This Court notices that show-cause notices are issued by the concerned authority on 27.07.2017 and 08.08.2017. This Court also notices that on 16.08.2017, Respondent No.2 noted that under the pretext of holidays, the petitioner continued to construct 6 shops, which is an unauthorized construction over the land, which, otherwise, is a government land. According to him, the construction was carried Page 8 of 12 HC-NIC Page 8 of 12 Created On Fri Sep 08 23:04:47 IST 2017 C/SCA/15750/2017 ORDER out on the piece of land bearing Revenue Survey No. 498/17/1. He, therefore, had directed the petitioner to give all the details on the next scheduled date of hearing on 29.08.2017, i.e. tomorrow. The petitioner also does not dispute that no permission so far of any authority is taken.
14. Learned Advocate, Mr. Oza, has submitted that the petitioner is contemplating to move the the appropriate authority for regularization. He does not dispute that the land had been allotted for the purpose of cemetery. It was the Committee, which decided to set aside a parcel of land for the purpose of construction for maintenance of the entire land.
15. Prima facie, it appears to be an act without any permission of any competent authority. Petitioner also is conscious of the fact that any construction, the Committee needs to carry out, shall have to be after seeking permission of appropriate authority. Therefore, if, the respondents are carrying out their statutory obligations by way of show-cause notice, no interference is desirable.
16. At this stage, it would be apt to refer to the decision of the Apex Court in 'UNION OF Page 9 of 12 HC-NIC Page 9 of 12 Created On Fri Sep 08 23:04:47 IST 2017 C/SCA/15750/2017 ORDER INDIA VS. KUNISETTY SATYANARAYANA', 2007 AIR SCW 607 wherein, the Apex Court has held that ordinarily no writ petition should be entertained against the issuance of show cause notice. Unless, it is shown that the notice issued is wholly without jurisdiction or is wholly illegal, no interference at that stage is warranted. The rationale behind such findings and ratio is that the writ lies when there is a breach of any right of the party. Unless the authority concerned decides, on receiving reply to the show cause notice, no right is infringed to issue writ jurisdiction. Of course, there are exceptional circumstances, but, in the present case, no such circumstance exists, which can be termed as exceptional, requiring issuance of writ jurisdiction.
17. In case of 'SPECIAL DIRECTOR AND ANOTHER VS. MOHD. GHULAM GHOUSE AND ANOTHER', (2004) 3 SCC 440, the Apex Court has laid down the very ratio, which deserves to be reproduced;
"This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, Page 10 of 12 HC-NIC Page 10 of 12 Created On Fri Sep 08 23:04:47 IST 2017 C/SCA/15750/2017 ORDER the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted.
In the instant case, the High Court has not indicated any reason while giving interim protection. Though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which has weighed with it in granting such Page 11 of 12 HC-NIC Page 11 of 12 Created On Fri Sep 08 23:04:47 IST 2017 C/SCA/15750/2017 ORDER an extra ordinary relief in the form of an interim protection. This admittedly has not been done in the case at hand."
18. Resultantly, this petition fails and is DISMISSED. However, this order shall not come in way of the petitioner in proceedings before the revenue authority and the proceeding which have been initiated by the authorities. Rule is discharged.
(MS SONIA GOKANI, J.) UMESH Page 12 of 12 HC-NIC Page 12 of 12 Created On Fri Sep 08 23:04:47 IST 2017