Gujarat High Court
Savitaben Rameshbhai Vaghani vs State Of Gujarat on 23 March, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/1535/2022 ORDER DATED: 23/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1535 of 2022
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SAVITABEN RAMESHBHAI VAGHANI
Versus
STATE OF GUJARAT
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Appearance:
G K VAGHANI(7830) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5
MS ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 23/03/2022
ORAL ORDER
By this petition, the petitioner seeks to challenge the order dated 20.12.2018 passed by the respondent no.2, i.e. Special Secretary, Revenue Department (Appeals) (hereinafter referred to as 'the SSRD'), so also the order dated 15.1.2008 passed by the respondent no.3 - Collector, Bhavnagar and the order dated 20.9.2006 passed by the Prant Officer, Palitana in Sharat Bhang Case Reg. No.67/06-07.
2. Tersely stated are the facts:-
2.1 The petitioner applied for grant of land so as to enable her to start the readymade garment unit, and as a result whereof, the office of the Collector, passed an order dated 13.9.1993, allotting the land bearing survey no.778 paiki, admeasuring 400 sq. mtrs. for the industrial purpose, i.e. readymade garment unit. According to the petitioner, the land was surrounded by industrial units, namely, stone crusher etc. and therefore, was not feasible to use the land for the purpose for which it was granted and therefore, the petitioner made an application to the Collector for change of use of land on 30.4.1996. The application, in turn, was forwarded to the State Government vide communication dated 7.3.2000 and is still pending.Page 1 of 9 Downloaded on : Sat Dec 24 13:28:56 IST 2022
C/SCA/1535/2022 ORDER DATED: 23/03/2022 2.2 The Collector, issued a show cause notice dated 15/22.2.1999,
followed by notice dated 17.8.2006 by the office of the Deputy Collector, Palitana which, culminated into order dated 20.9.2006.
Against the order of the Prant Officer, the petitioner, preferred an appeal before the Collector which, came to be dismissed on 15.1.2008 and the order dated 20.9.2006 of the Prant Officer, was confirmed. The petitioner, being aggrieved, preferred a revision application before the SSRD who, vide order dated 20.12.2018, dismissed the same and confirmed the order dated 15.1.2008 of the Collector. Hence, the present writ petition.
3. Mr G.K. Vaghani, learned advocate appearing for the petitioner submitted that the land was allotted in favour of the petitioner vide order dated 13.9.1993, incorporating certain terms and conditions and as per one of the conditions, the petitioner, was to complete the construction within a period of two years and start the use. It is submitted that the land was given for industrial purpose and it was surrounded by the cement factories and therefore, it was not feasible for the petitioner to use it for the purpose for which it was given. It is submitted that therefore, the petitioner, somewhere in the year 1996, applied for change of use; however, instead of considering the application for change of use, proceedings were initiated by the office of the Prant Officer for breach of conditions under the provisions of Section 79A of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as 'the Code'), which culminated into passing of the order dated 20.9.2006.
3.2 It is submitted that the petitioner, aggrieved, had preferred an appeal before the Collector who, without considering the explanation offered by the petitioner, rejected the same and confirmed the order dated 20.9.2006 of the Prant Officer. Similarly, the SSRD also did not consider the fact that it was not feasible and Page 2 of 9 Downloaded on : Sat Dec 24 13:28:56 IST 2022 C/SCA/1535/2022 ORDER DATED: 23/03/2022 possible for the petitioner to use the land for the readmade garment unit and rejected the revision, confirming the order of the Collector dated 15.1.2008.
3.3 It is submitted that as per the conditions contained in the order dated 13.9.1993 and more particularly, condition no.7, the petitioner was obliged to put up the construction within a period of two years and to start the use; however, owing to the circumstances beyond her control, the condition could not be adhered to. Since it was not feasible for the petitioner to start the use for readymade garment unit, the petitioner made an application somewhere in the year 1996 for the change of use and according to the petitioner, the application has been forwarded to the State Government and which is pending consideration.
3.4 It is submitted that so far as the conditions contained in order dated 13.9.1993 are concerned, they are onerous and not capable of being complied with. It is submitted that the whole area of the land was surrounded with cement factories and therefore, to set up a readymade garment unit, was next to impossible so far as the petitioner is concerned and therefore, the same could not be done.
3.5 It is submitted that instead of deciding the application for change of use, the Collector, initiated the proceedings for breach of conditions under Section 79A of the Code which, thereafter was transferred to the Prant Officer and the Prant Officer, has passed the order dated 20.9.2006, inter alia, holding that the land was granted for the purpose of readymade garment unit on new and impartible tenure basis; however, the grantee, had used it for the purpose of storing the cement products and therefore, committed a breach. It is submitted that the Prant Officer, has directed forfeiture of the land in the State Government.
Page 3 of 9 Downloaded on : Sat Dec 24 13:28:56 IST 2022C/SCA/1535/2022 ORDER DATED: 23/03/2022 3.6 It is submitted that the difficulty faced by the petitioner, has
not been considered by the Prant Officer inasmuch as, it was practically not possible for the petitioner to have started the readymade garment unit. It is also submitted that in the interregnum, the petitioner had preferred a writ petition being Special Civil Application No.13781 of 2008 and this Court, in the first instance, while admitting the matter, had granted interim relief, staying the implementation of order dated 15.1.2008. Subsequently, the writ petition came to be disposed of with a direction to the learned SSRD to decide the appeal within a reasonable period. It is submitted that this Court, inter alia, initially found prima facie case in favour of the petitioner and therefore, interim relief was extended.
3.7 It is also submitted that application for the change of use forwarded to the State Government, was pending and when the Prant Officer, was aware about the pendency of the application, it was expected of him to have awaited the decision of the State Government and ought not to have initiated the action for breach of conditions under Section 79A of the Code. Therefore, the decision taken by the Prant Officer, is unjust. It is therefore, submitted that the order dated 20.12.2018 of the SSRD and other revenue authorities, deserve to be quashed and set aside.
4. On the other hand, Ms Asmita Patel, learned Assistant Government Pleader appearing for the respondent no.1, submitted that the order dated 13.9.1993 has been passed, granting the land in favour of the petitioner on new and impartible basis and therefore, there was no option available to the petitioner, but to abide by the terms and conditions incorporated in the order. It is submitted that it was expected of the petitioner to have adhered to the conditions, failing which, the action taken for initiation of the Page 4 of 9 Downloaded on : Sat Dec 24 13:28:56 IST 2022 C/SCA/1535/2022 ORDER DATED: 23/03/2022 breach of conditions, cannot be said to be illegal or unjust.
4.1 It is also submitted that that there is admitted breach of condition, inasmuch as, the land was granted for the purpose of readymade garment unit; instead of using the same for readymade garment, the petitioner had utilised the same for storage of the products of the cement factory, which is being run by the husband of the petitioner.
4.2 It is also submitted that so far as the application for change of use by the petitioner is concerned, that would be immaterial inasmuch as, the proceedings for change of use are independent and distinct of the proceedings for breach of conditions under Section 79A of the Code. It is submitted that the order granting land was of the year 1993, and as per one of the terms and conditions, the petitioner was obliged to put up the construction within a period of two years and to start the usage. It is submitted that the land was to be utilised for the industrial purpose and the change of use, was impermissible. The petitioner neither had carried out the construction within the stipulated period of two years nor has used the land for the purpose for which it was granted. The land indeed, has been used for the purpose other than the purpose for which it was granted and therefore, clearly, there was a breach of condition. It is only after following the procedure, as provided, that the order dated 20.9.2006 came to be passed by the Prant Officer. It is not even the case of the petitioner that there is no breach of condition. It is a fact which has been conceded by the petitioner that the land is not being used. It is also submitted that the Prant Officer, after giving opportunity to the petitioner, so also considering the written statement, had concluded that the land is being used for the purpose of storing the products of the cement factory and therefore, there is a breach. It is submitted that nothing has been pointed out Page 5 of 9 Downloaded on : Sat Dec 24 13:28:56 IST 2022 C/SCA/1535/2022 ORDER DATED: 23/03/2022 by the petitioner that the said observations, are either perverse or are based on no evidence.
4.3 It is submitted that in the appeal before the Collector, the Collector also has concluded about the breach and therefore, it cannot be said that the Collector, has committed any error in confirming the order of the Prant Officer dated 20.9.2006. So far as the order of the SSRD is concerned, the same is also legal and proper and no error can be said to have been committed by it in passing the order. It is submitted that when there are concurrent findings of fact, arrived at by all the authorities, this Court, in exercise of the powers under Article 227 of the Constitution of India, may not like to interfere with the concurrent findings.
4.4 It is further submitted that the SSRD has passed the order dated 20.12.2018; whereas, the petition has been filed recently in the year 2022, i.e. almost with a delay of more than three years. It is submitted that there is not a semblance of explanation offered to justify the delay which has been caused in preferring the writ petition. Therefore, on this count also, the petition deserves to be dismissed.
5. Heard the learned advocates appearing for the respective parties.
6. The facts in brief are that the land came to be allotted in favour of the petitioner vide order dated 13.9.1993, incorporating certain terms and conditions. Pertinently, the petitioner, did not adhere to the conditions incorporated in the order and that there was a breach on her part, which led to initiation of the proceedings under Section 79A of the Code. The proceedings culminated into passing of the order dated 20.9.2006, followed by the order dated 15.1.2008 and further followed by the order dated 20.12.2018.
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7. Clearly, the order has been passed by the SSRD in the year 2018, whereas, the petition has been filed in the year 2022, i.e. almost after a period of three years. Bare perusal of the averments made in the petition, suggest there is not a semblance of explanation offered in the writ petition explaining the delay in approach this Court. In absence of any explanation offered, justifying the delay, this Court, is of the opinion that the petition deserves to be dismissed on this count alone; for sake of completeness, the Court would like to advert to the orders passed by the revenue authorities, cancelling the allotment of land in favour of the petitioner.
8. As aforesaid, the land was granted in the year 1993, incorporating certain terms and conditions. The condition no.5, contemplates that the land has been granted for industrial purpose and the same should not be used for any other purpose without the prior permission of the State Government. Condition no.7, provides that the construction shall be carried out within a period of two years and the land, should be used thereafter. It has been fairly conceded by Mr Vaghani, learned advocate that the land was granted for the readymade garment unit, however, owing to certain circumstances, the land could not be used for the said purpose. Concededly the petitioner, had not adhered to the conditions incorporated in the grant order dated 13.9.1993.
9. Moreover, as per the one of conditions, the petitioner was obliged to complete the construction within a period of two years, however, the same has not been done. As against this, the application for change of use was made somewhere in the year 1996, that would also beyond the period of two years. It is discernible from the record that the Collector, considering the first breach, has passed an order dated 27.5.1999 extending the time Page 7 of 9 Downloaded on : Sat Dec 24 13:28:56 IST 2022 C/SCA/1535/2022 ORDER DATED: 23/03/2022 limit by imposing the penalty of 20 times the assessment and as per the said order, the petitioner was obliged to complete the construction on or before 31.12.1999. Perceptibly, the State Government, vide its order dated 20.10.2001, has rejected the application of the petitioner for the change of use. The application of the petitioner for change of use came to be rejected, and the petitioner, without waiting for the decision on the application, had changed the use of the land and therefore, there was/is a clear breach of the conditions of the grant order dated 13.9.1993, which aspect has also been admitted by the petitioner. The explanation put forth by the petitioner, is to the effect that it was not feasible and possible for the petitioner to have used the land for the purpose for which it was granted.
10. In the proceedings under Section 79A of the Code, the Prant Officer, after adjudication, has passed the order dated 20.9.2006, inter alia, observing that the land was granted for the readymade garment unit, however, the same is used for storing the products of the cement factory, run by the husband of the petitioner. Since it was found that there was a breach, the land has been forfeited in the State Government. Similarly, the Collector, had also given the findings along the the lines of the findings of the Prant Officer, so also the SSRD. Mr Vaghani, learned advocate, could not point out that the findings of the Prant Officer or the Collector, are based on no evidence or that they are perverse. Also, all the revenue authorities, i.e. the Prant Officer, by passing the order dated 20.9.2006, the Collector, by passing the order dated 15.1.2008 and the SSRD, by passing the order dated 20.12.2018, have concurrently held that there was a breach of condition and in absence of any justification coming forth by the petitioner, the Court is of the opinion that no error has been committed by the revenue authorities.
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12. In view of the aforesaid, this Court, in exercise of the powers under Articles 226 and 227 of the Constitution of India, would not like to entertain the writ petition and the petition, deserves to be dismissed in limine. The petition is dismissed. No order as to costs.
(SANGEETA K. VISHEN,J) BINOY B PILLAI Page 9 of 9 Downloaded on : Sat Dec 24 13:28:56 IST 2022