Gujarat High Court
Ashapura Foundation C/O Hiralakshmi ... vs State Of Gujarat on 29 October, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/12823/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12823 of 2020
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ASHAPURA FOUNDATION C/O HIRALAKSHMI MEMORIAL CRAFT PARK
Versus
STATE OF GUJARAT
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Appearance:
MR YASH N NANAVATY(5626) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5
MR AKASH CHHAYA, ASSISTANT GOVERNMENT PLEADER/PP(99) for
the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 29/10/2020
ORAL ORDER
1. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 4.9.2020 passed by the Special Secretary (Appeals), Revenue Department as well as the order dated 3.6.2020 passed by respondent No.3 Collector, the same being illegal, arbitrary and bad.
2. The brief facts of the case are that the petitioner is a registered public charitable trust and is working for the development of rural education, medical, water harvesting, women and child development, vocational training, local arts, culture and history. It for the purpose of Vocational and Educational Training Centre for Post Graduate Management Institute, has applied for allotment of land to the State Government, which came to be allotted, vide order dated 24.7.1997 by depositing 50% of the land value on various terms and conditions.
2.1 According to the petitioner, almost after more than 20 years of allotment on the basis of complaints filed by few persons, alleging that Page 1 of 8 Downloaded on : Sun Aug 22 08:04:34 IST 2021 C/SCA/12823/2020 ORDER the breach has taken place, the Collector issued a notice dated 26.11.2019 requiring the petitioner to show cause as to why the proceedings shall not be initiated under provisions of section 79 of the Gujarat Land Revenue Code (hereinafter referred to as 'the Code') for breach of condition nos.1, 5, 6 and 7 of the allotment letter dated 24.7.1997. Pursuant to the notice dated 26.11.2019, the petitioner through its advocate, filed a reply dated 6.3.2020 along with documentary evidence. According to the petitioner, in the interregnum, on the basis of the complaints received, reports were called for from the office of the Deputy Collector as well as the office of the Mamlatdar, which was sent by Deputy Collector vide letter dated 7.7.2018 to the Collector and on the basis whereof, the Collector had issued the aforesaid show cause notice dated 26.11.2019.
2.2 After hearing the petitioner, the Collector passed an order dated 3.6.2020 and held that the petitioner has committed breach of condition nos.1, 5, 6 and 7 of the allotment letter dated 24.7.1997 and therefore, in view of the provisions of section 79A of the Code, the land bearing Survey No.331/1 paiki, admeasuring 64,750 sq.mtrs. (hereinafter referred to as 'the land in question') stands vested in the State Government free from all encumbrances. The Mamlatdar was directed to take vacant and peaceful possession of the land in question and submit a report to the office of the Collector.
2.3 The petitioner, being aggrieved, preferred a writ petition before this Court, however, the same was not entertained with a liberty to avail of the remedy before the Special Secretary (Appeals), Revenue Department and accordingly, the petitioner withdrew the writ petition with the liberty and filed a revision application before the Special Secretary (Appeals), Revenue Department. The Special Secretary (Appeals), Revenue Department, vide order dated 4.9.2020, rejected the same and thereby, the order dated 3.6.2020 passed by the Collector Page 2 of 8 Downloaded on : Sun Aug 22 08:04:34 IST 2021 C/SCA/12823/2020 ORDER stood confirmed. Hence the present petition.
3. Mr. Yash N. Nanavaty, learned advocate for the petitioner submitted that the order dated 4.9.2020 passed by the Special Secretary (Appeals), Revenue Department as well as the order dated 3.6.2020 passed by the Collector, are one-sided orders inasmuch as, the orders would clearly suggest that the same are passed without application of mind and without considering the submissions advanced by the petitioner. It is submitted that the legitimate explanation was offered by the petitioner to the Collector informing the inability at the relevant point of time on the part of the petitioner for not commencing the construction on the land in question. The allotment was made in the year 1997, however, thereafter, in January 2000, there was a massive earthquake, destroying almost everything in Bhuj and therefore, the petitioner had to divert its funds and resources for the immediate welfare of the people at large. However, the petitioner left with no resources, could not undertake the project immediately. The delay on the part of the petitioner is bona fide and was unintentional; however, the petitioner is still firm of its goal and objectives and is ready and willing to use the land in question as per the allotment letter dated 24.7.1997.
3.1 It is submitted that a bare perusal of the contents of the communications exchanged inter-office and intra-office, clearly suggests that all the contents whereof are verbatim same and therefore, it cannot be said that before passing the order dated 3.6.2020, the Collector has applied his mind. Therefore, passing of the order dated 3.6.2020 clearly shows that there is non-application of mind on the part of the Collector and the same error was continued by the Special Secretary (Appeals), Revenue Department, while passing the order dated 4.9.2020. It is, thus, urged that the matter requires admission and consequently the order dated 4.9.2020 passed by the Special Page 3 of 8 Downloaded on : Sun Aug 22 08:04:34 IST 2021 C/SCA/12823/2020 ORDER Secretary (Appeals), Revenue Department as well as the order dated 3.6.2020 passed by the Collector deserve to be quashed and set aside.
4. Mr. Akash Chhaya, learned Assistant Government Pleader for the respondent State submitted that there is no error committed by the Collector while passing the order dated 3.6.2020 inasmuch as, the petitioner has clearly failed to abide by condition nos.1, 5, 6 and 7 of the allotment letter dated 24.7.1997 and therefore, as per the allotment letter dated 24.7.1997, if the petitioner has committed breach, the land in question deserves to be vested in the State Government free from all encumbrances. It is next submitted that the Collector has rightly exercised power under section 79A of the Code and therefore, no interference is required by this Court in exercise of its extraordinary powers under Article 226 of the Constitution of India. It is next submitted that while rejecting the revision application, the Special Secretary (Appeals), Revenue Department has considered all the aspects and did not interfere with the findings recorded by the Collector, which were very much in sync with the material available on record. It is submitted that the Special Secretary (Appeals), Revenue Department has considered the aspect that the Collector, after verifying the record, so also the opinions offered by the Deputy Collector and the Mamlatdar, has rightly exercised the powers under section 79A of the Code inasmuch as, the allotment was made in the year 1997, and the land in question has not been utilised for the purpose, for which it was granted. It is, thus, urged that the petition is devoid of any merits and deserves to be dismissed.
5. Heard Mr. Yash N. Nanavaty, learned advocate for the petitioner and Mr. Akash Chhaya, learned Assistant Government Pleader for the respondent State, through video conferencing.
6. Pertinently, the land in question came to be allotted by the State Page 4 of 8 Downloaded on : Sun Aug 22 08:04:34 IST 2021 C/SCA/12823/2020 ORDER Government vide Government Resolution dated 18.9.1996 in favour of the petitioner for the purpose of Vocational and Educational Training Centre for Post Graduate Management Institute on a subsidised rate. Apropos the Government Resolution dated 18.9.1996, the Collector had passed the consequential order dated 24.7.1997 on various terms and conditions. Condition no.1 of the conditions was to the effect that the land should be used for the purpose, for which it has been granted and not for any other purpose. Condition no.5 provided that within 6 months from the date of possession, the petitioner shall start construction and the same should be completed within a period of 2 years. Condition no.6 further provided that the petitioner should utilise the land in question to its optimum capacity and it should not be kept unutilised and if is found unutilised, then the possession whereof will be taken by the State Government. Condition no.7 provided that before using the land, the petitioner should get itself registered and should start its activities. It further provides that 2 years after getting the possession, the petitioner should start institution after obtaining necessary permission from the concerned authority and the same should be informed to the office of the Collector.
7. As is discernible from the record and not disputed by the petitioner, the land in question remained unutilised for all these years. On the basis of certain complaints received, a proposal was exchanged between the Mamlatdar, Deputy Collector and Collector which led to the issuance of the show cause notice dated 26.11.2019 requiring the petitioner to show cause as to why the possession of the land in question should not be taken back in view of the provisions of section 79A of the Code. The petitioner was also required to submit its reply as regards breach of condition nos.1, 5, 6 and 7.
8. The petitioner submitted its reply and made the oral submissions before the Collector. The case of the petitioner was that the petitioner Page 5 of 8 Downloaded on : Sun Aug 22 08:04:34 IST 2021 C/SCA/12823/2020 ORDER has not unintentionally committed breach of the conditions, however, the circumstances were beyond its control and therefore, necessary construction could not be undertaken as per the university norms. While justifying the breach of condition no.1, it is conceded and assurance has been extended by the petitioner that the land in question will be used for the purpose, for which it was allotted. With reference to the breach of condition no.5, it was contended that owing to the massive earthquake and natural calamity, the circumstances were beyond its control and therefore, the petitioner could not undertake the activity of the construction, however, the petitioner assured that as and when the extension is granted by the university, the petitioner will undertake the construction work as per the norms and necessity of the university. While referring to the condition no.6, it was submitted before the Collector that the land in question will be put to the optimum utilisation as per the government and university norms and therefore, there arises no question of land remaining unutilised. Further, in response to the breach of condition no.7, it was informed before the Collector that the petitioner is a registered trust and certificate whereof was produced. It was also informed that the petitioner has already initiated the process of permission and upon completion of the construction, the institution will be started.
9. The Collector, after considering the said reply, passed an order dated 3.6.2020, observing that clearly, the breach is committed by the petitioner inasmuch as, the land has not been used for the purpose, for which it was granted. Neither the construction started within a period of 6 months nor it has completed within a period of 2 years from the date of the allotment. Further, the Collector has further observed that though the petitioner was obligated to put the land to the optimum use, the petitioner has not done so. Similarly, so far as condition no.7 is concerned, the petitioner was under obligation to register the trust and Page 6 of 8 Downloaded on : Sun Aug 22 08:04:34 IST 2021 C/SCA/12823/2020 ORDER to start the activities, so also the institute, however, the petitioner has not started any activities nor had informed the office of the Collector about the permission. The Collector observed that though the petitioner has produced the registration of the trust, however, the same has been done after a span of 18 years. From the record, it appears that the petitioner has not taken any steps or has put any attempt in furtherance of all the conditions enumerated in the allotment letter dated 24.7.1997 and therefore, it has committed breach of condition nos.1, 5, 6 and 7. The Collector, therefore, in exercise of the powers conferred under section 79A of the Code, directed vesting of the land in question in the State Government free from all encumbrances, with a further direction to the Mamlatdar to take the vacant and peaceful possession of the land in question.
10. The said order was challenged by the petitioner before the Special Secretary (Appeals), Revenue Department, which, after considering the order of the Collector dated 3.6.2020, threadbare, as well as also also the material, has come to the conclusion that no error has been committed by the Collector while passing the order dated 3.6.2020 and rejected the revision application whereby the order dated 3.6.2020 stood conformed.
11. Therefore, there is a concurrent findings of facts arrived at by the Collector as well as the Special Secretary (Appeals), Revenue Department. From the record, the petitioner has not been able to point out that the findings recorded by the Collector as well as the Special Secretary are erroneous or that the factors relevant for the determination have not been considered by the authorities below. Further, as can be seen from the record, the petitioner itself has admitted that there is a breach committed by it of condition nos.1, 5, 6 and
7. After 23 years, the only justification offered is the assur ance to the Collector that it will now abide by the terms and conditions enumerated Page 7 of 8 Downloaded on : Sun Aug 22 08:04:34 IST 2021 C/SCA/12823/2020 ORDER in the allotment letter dated 24.7.1997, which is clearly impermissible.
12. In view of the aforesaid discussion, this Court is of the opinion that neither the Collector nor the Special Secretary (Appeals), Revenue Department has committed any error calling interference by this Court under Article 226 of the Constitution of India. Therefore, the petition fails and is accordingly dismissed. No order as to costs.
(SANGEETA K. VISHEN, J) Bharat/cmk Page 8 of 8 Downloaded on : Sun Aug 22 08:04:34 IST 2021