Gujarat High Court
Kaminiben Wd/O Jatinbhai Hasmukhbhai ... vs District Collector, Surat on 13 March, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/13094/2023 JUDGMENT DATED: 13/03/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13094 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
KAMINIBEN WD/O JATINBHAI HASMUKHBHAI PATEL & ORS.
Versus
DISTRICT COLLECTOR, SURAT & ANR.
================================================================
Appearance:
MR KK TRIVEDI(934) for the Petitioner(s) No. 1,2,3MS.
SHRUTI PATHAK, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 13/03/2024
ORAL JUDGMENT
1. By consent of learned advocates for the parties, this matter was taken up and heard finally.
Page 1 of 9 Downloaded on : Mon Mar 18 20:36:16 IST 2024
NEUTRAL CITATION C/SCA/13094/2023 JUDGMENT DATED: 13/03/2024 undefined
2. RULE. Learned AGP Ms. Shruti Pathak waives service of notice of rule for and on behalf of the respondent - State.
3. By way of this petition, the petitioners have prayed for quashing and setting aside the order dated 19.05.2023 passed by the Collector as far as it imposes the amount of penalty to the tune of Rs. 23,40,000/- for alleged breach of the provisions of the Fragmentation Act and has prayed for further direction against the respondent no. 2 to issue challan for an amount of Rs. 1,80,885/-for granting permission for N. A. use under the provisions of section 65 of Gujarat Land Revenue Code in respect of land bearing Block No. 112/B which belongs to the petitioners.
4. Heard learned advocate Mr. K. K. Trivedi for the petitioners and learned AGP Ms. Shruti Pathak for the respondent - State.
5. The facts of the case can be summarized as under:-
5.1. One Valiben Hargovanbhai purchased the land bearing Revenue Survey No. 612/3 - Block No. 112 admeasuring 6 Acres 19 Page 2 of 9 Downloaded on : Mon Mar 18 20:36:16 IST 2024 NEUTRAL CITATION C/SCA/13094/2023 JUDGMENT DATED: 13/03/2024 undefined Gunthas of Village: Pal, Taluka: Choryasi and District: Surat through Public Auction conducted by the Land Development Bank on 30.01.1978 and name of Valiben Hargovanbhai was entered in the revenue record by Mutation Entry No. 3697 dated 31.03.1978. Thereafter, the area of the land was corrected on the basis of Durasti Patrak as 24,585 Sq. Mtrs. for which the Mutation Entry No. 3794 also was mutated.
5.2. In the year 1999, the name of Sukhdevbhai Hargovanbhai (son of Valiben Hargovanbhai) and Dipakbhai Sukhdevbhai and Hasmukhbhai Sukhdevbhai (Grandsons of Valiben Hargovanbhai) were entered into the revenue record as Joint Cultivators by Mutation Entry No. 4643. Valiben executed a registered WILL No. 1562 of 2004 dated 16.09.2004 and thereby, bequeathing her share in the land in favour of her two Grandsons namely Dipakbhai Sukhdevbhai and Hasmukhbhai Sukhdevbhai and thereafter, she expired on 04.01.2005.
Accordingly, the names of her two grandsons namely Dipakbhai Sukhdevbhai and Hasmukhbhai Sukhdevbhai entered into the revenue record.
Page 3 of 9 Downloaded on : Mon Mar 18 20:36:16 IST 2024
NEUTRAL CITATION C/SCA/13094/2023 JUDGMENT DATED: 13/03/2024 undefined 5.3. Thereafter, in the year 2006, Village Pal was included in the extended city limits of Surat City and name of Bhautik Dipakbhai Patel, Jatinbhai Hasmukhbhai Patel and Digenbhai Hasmukhbhai Patel were entered into revenue record who happens to be grandsons of Valiben.
5.4. Jatinbhai Hasmukhbhai Patel expired on 31.12.2009 and name of his legal heirs namely Kaminiben (widow) and Minor Mahi (Daughter) i.e. petitioners no. 1 and 2 herein entered in the revenue record by Mutation Entry No. 6923 dated 18.03.2010. Thereafter, the petitioners filed Special Civil Suit No. 531 of 2011 for partition and for sharing the land and the same was compromised and was disposed of by way of Compromise Decree and accordingly Mutation Entry no. 7461 dated 16.02.2012 was mutated in the revenue record. 5.5. The petitioners no. 1 and 2 got 4352.22 sq. mtrs. of the land bearing Block No. 112 on the basis of the aforesaid Compromise Decree and Partition and Entry No. 7854 was mutated on 21.05.2014.
Page 4 of 9 Downloaded on : Mon Mar 18 20:36:16 IST 2024
NEUTRAL CITATION C/SCA/13094/2023 JUDGMENT DATED: 13/03/2024 undefined 5.6. The petitioner no. 3 - Digenbhai Hasmukhbhai Patel received the land bearing Block No. 112/A paikee eastern side - area admeausirng 7940.50 sq. mtrs of land which is abutting the land of the petitioners no. 1 and 2. both the lands are contiguous to eachother.
5.7. The petitioners made an application on 25.01.2023 seeking N. A. permission under section 65 of the Gujarat Land Revenue Code, 1879. However, initially provisional permission was granted vide order dated 19.05.2023 and the petitioners were asked to pay sum of Rs. 25,20,885/- including sum of Rs. 23,40,000/- towards the penalty for violation of provision of Fragmentation Act.
5.8. The petitioners have approached this Court challenging the aforesaid order only to the extent to imposing a penalty of Rs. 23,40,000/- towards violation of provision of Fragmentation Act.
6. Learned advocate Mr. K. K. Trivedi appearing for the petitioners submitted that while granting N. A. Permission vide order dated Page 5 of 9 Downloaded on : Mon Mar 18 20:36:16 IST 2024 NEUTRAL CITATION C/SCA/13094/2023 JUDGMENT DATED: 13/03/2024 undefined 19.05.2023, the authority has without there being any basis for the same, imposed a penalty of Rs. 23,40,000/- for violation of provisions of Fragmentation Act. He submitted that the proceedings for violation of provisions of Fragmentation Act were never initiated against the present petitioners. He submitted that when the violation of Fragmentation Act has not been proved and no proceedings are initiated against the present petitioners at any point of time, imposition of such penalty is not only unreasonable but baseless as well and hence the order is required to be quashed and set aside to the extent that it directs the petitioners to pay the penalty of Rs. 23,40,000/- for violation of provisions of Fragmentation Act.
6.1. Learned advocate Mr. Trivedi relied upon the order dated 14.02.2024 passed by this Court in Special Civil Application No. 11452 of 2023 with Special Civil Application No. 11453 of 2023 in case of Bharatbhai Amratbhai Desai V/s. State of Gujarat whereby in similar set of facts, this Court quashed and set aside the impugned order and remanded the matter back to the concerned authority.
Page 6 of 9 Downloaded on : Mon Mar 18 20:36:16 IST 2024
NEUTRAL CITATION C/SCA/13094/2023 JUDGMENT DATED: 13/03/2024 undefined
7. Learned AGP Ms. Shruti Pathak appearing for the respondent - State vehemently opposed this petition and submitted that even if there is family partition, the authority has granted N. A. Permission but has imposed the penalty for violation of provisions of Fragmentation Act and for that penalty of Rs. 23,40,000/- has rightly been imposed. She submitted that the authority was well within its right to impose such penalty. 7.1. However, upon a query from the Court, learned AGP Ms. Pathak fairly conceded that till date, there are no proceedings for violation of the Fragmentation Act has been initiated. However, she submitted that though the proceedings are not initiated, it is apparent from the facts of the case that the provisions of Fragmentation Act are violated and therefore, authority has justified in imposing the penalty.
8. However, learned AGP Ms. Pathak also could not dispute the fact that in similar set of facts, this Court has quashed the order whereby in absence of initiation of any proceedings under the Fragmentation Act for violation of its provisions, this Court had Page 7 of 9 Downloaded on : Mon Mar 18 20:36:16 IST 2024 NEUTRAL CITATION C/SCA/13094/2023 JUDGMENT DATED: 13/03/2024 undefined quashed the orders whereby N. A. Permission was rejected.
9. Having heard learned advocates for the parties and upon perusing the record, I found that though vide order dated 19.05.2023, N.A. permission was granted in favour of the petitioners and amount of Rs. 23,40,000/- were directed to be paid by the petitioners towards the penalty for violation of provisions of Fragmentation Act, such penalty could have been imposed only in case, if any proceedings were initiated at any point of time against the petitioners and those proceeding were decided against the petitioners. In the instant case, as can be seen from the record, there are no proceedings initiated under the provisions of Fragmentation Act for its violation against the petitioners. Even learned AGP could not point out either from the record, or on the basis of any instruction that any such proceedings are initiated. In absence of there being any proceedings or even a show cause notice worth the name alleging the violation of provisions of Fragmentation Act, the authority on its own cannot presume the violation of provisions of Fragmentation Act and could not have imposed the penalty for Page 8 of 9 Downloaded on : Mon Mar 18 20:36:16 IST 2024 NEUTRAL CITATION C/SCA/13094/2023 JUDGMENT DATED: 13/03/2024 undefined its alleged violation. Therefore, while passing the order of N. A., there is no basis for demanding an amount of Rs. 23,40,000/- from the petitioners towards the penalty for violation of provisions of Fragmentation Act. Accordingly, the demand of Rs. 23,40,000/- for alleged breach of provisions of Fragmentation Act is unreasonable and without any basis and therefore, the same is required to be quashed and set aside. Resultantly, rest of order dated 17.05.2023 would remain the same. If the remaining amount has not been paid by the petitioners, the petitioners may pay the same within a period of one month from today. The same shall be subject to any appeal that the Government may prefer.
10. With the aforesaid observation and direction, the petition succeeds. Accordingly, the petition is allowed. Rule is made absolute. No order as to costs.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 9 of 9 Downloaded on : Mon Mar 18 20:36:16 IST 2024