Gujarat High Court
Sharadaben W/O Govindbhai Kodipatel ... vs State Of Gujarat Through The Secretary on 8 December, 2022
Author: Ashutosh J. Shastri
Bench: Aravind Kumar, Ashutosh J. Shastri
C/LPA/432/2018 JUDGMENT DATED: 08/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 432 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 2353 of 2018
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SHARADABEN W/O GOVINDBHAI KODIPATEL D/O MATHURBHAI
GAFURBHAI
Versus
STATE OF GUJARAT THROUGH THE SECRETARY
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Appearance:
for the Appellant(s) No. 1
MR PERCY KAVINA SR. ADVOCATE with MR. DARSHIT H SHAH(9894) for
the Appellant(s) No. 1
MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR. MANOJ T DANAK(6264) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 08/12/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)
1. By way of this Letters Patent Appeal under Clause 15 of Letters Patent, appellant - original petitioner has assailed the order passed by the learned Single Judge dated 09.02.2018 by virtue of which petition was summarily dismissed.
2. The facts in brief are that original petitioner is the owner of land bearing Survey No. 147 (old survey no. 434) Page 1 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 admeasuring 0-23-78 situated at Village Shiyavada, Taluka :
Sanand, District : Ahmedabad and is carrying on agricultural activities for her livelihood. This land in question was purchased from its previous owner named as Arjanbhai Revabhai vide sale deed dated 15.04.2013 and by virtue of said registered sale deed, the name of the petitioner has also been mutated and effect was given in the revenue records. It is the case of the appellant - petitioner that respondent no. 2 is the resident of village Shiyavada, has nothing to do with petitioner remotely with the land in question and is involved in activity of creating hurdles, by submitting an application on 07.12.2015 to the Hon'ble Chief Minister of Gujarat he had made a request to inquire about the construction carried out over the land and also to inquire about the revenue records. Since application was submitted to the Hon'ble Chief Minister through proper channel, same was forwarded to the Section Officer and then to the Collector, Ahmedabad and Collector in turn was pleased to dispose of the same. However, again respondent no. 2 made yet another application on 09.03.2016 reiterating the fact and then submitted that petitioner made construction of 49 shops without Page 2 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 prior permission of competent authority and as such, requested the authorities to initiate action against petitioner under the provisions of the Gujarat Land Revenue Code.
2.1. In response to this, Deputy Collector, Sanand investigated and passed an order on 15.02.2017 whereby, it was concluded that land has been used for non agricultural and commercial purposes though same was a new tenure and undivided type of land, without prior permission of the competent authority and as such ordered for such land being vested with the Government without encumbrances. This order was carried in appeal before the Collector, who vide order dated 23.08.2017 was pleased to confirm the order of Deputy Collector and dismissed the appeal against which a further appeal came to be filed by the petitioner before the Revenue Secretary, who disposed of revision/appeal vide order dated 06.01.2018 and dismissed the same. It was submitted by the petitioner that construction of 49 shops were never concealed at any point of time from revenue authorities, but it is only on account of personal vendetta, respondent no. 2 is out to destroy and ruin the petitioner and her livelihood a Page 3 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 complaint has been lodged. It was the case of petitioner that similarly placed persons have also filed Special Civil Application 29374 of 2007 which was disposed of with a liberty to petitioner therein to approach the Collector seeking regularization of construction on payment of any prevalent price or premium as the case may be. The said petition was disposed of by order dated 08.07.2008 vide Annexure-E. 2.2. Since the petitioner has never suppressed anything from the revenue authorities and on the contrary petitioner being inclined to seek regularization on payment of fine or premium as the case may be, has approached this Court by way of petition being Special Civil Application 2353 of 2018 with a prayer to direct the respondent Collector to accept the application of petitioner and to consider the same by regularizing the construction which has been put up over the land in question on payment of premium/fine at the prevalent price and within stipulated period in consonance with the direction earlier issued by this Court in Special Civil Application 29374 of 2007. 2.3. This petition came up for consideration before the learned Page 4 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 Single Judge on 09.02.2018 and learned Single Judge was pleased to summarily dismiss the same mainly on the count that there appears to be concurrent findings of fact and there is no order forthcoming on record to indicate that land in question was ever converted into old tenure which could be utilized for non-agricultural purposes and as such, petition came to be dismissed. Hence, present Letters Patent Appeal has been preferred
3. Mr. Percy Kavina, learned Senior Advocate appearing on behalf of the appellant - petitioner assisted by Mr. Darshit Shah has contended that appellant has never suppressed any fact about construction of 49 shops, but the issue has been confused with regard to the conversion. The fact that land has already been converted into old tenure has not been properly considered by the learned Single Judge and as such, order suffers from vice of non application of mind. It has been submitted that this is not a case of grant of land on certain condition which have been violated. In fact, petitioner had purchased the land in question under a registered sale deed and as such, there is no case of breach of conditions. Further, it has Page 5 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 been contended that learned Single Judge proceeded on the footing that appellant has lost before three authorities and was swayed away by the fact that land was new tenure impartible land, as recorded by the revisional authority and this observation contained in paragraph 5 of the order of the learned Single Judge is in conflict with the records. He would submit that subject land has been converted into old tenure, the entry to that effect has also been made which can be seen from page 44-F and as such, finding which has been recorded is quite erroneous. Mr. Percy Kavina, learned Senior Advocate has also submitted that even finding in that regard has also been erroneously recorded by the authorities below and, therefore, instead of summarily disposing of the petition, the authority ought to have called upon to verify the same.
3.1. Mr. Kavina, learned Senior Advocate has further submitted at the best a case of violation of provisions of the Gujarat Land Revenue Code could be urged by State against petitioner for which the Statute has prescribed a machinery to deal with by imposing either fine or by prescribing premium. He would submit when appellant has not suppressed the fact of Page 6 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 construction, the authority ought not to have adopted such approach. In fact, it has not been correctly recorded in the order dated 09.02.2018 in paragraph 4 that the learned Assistant Government Pleader has submitted that no order has been forthcoming on record showing that the land in question was ever converted into old tenure, which could be subject to non-agricultural use. A close perusal of the orders passed by the authorities below also are indicating that land has been converted into old tenure and as such, at best, fine or premium could have been imposed upon petitioner since she is seeking regularization of such alleged offending construction. 3.2. Mr. Kavina, learned Senior Advocate has further submitted that powers of resumption of land is not available to the State under the Act and as such, the authority itself has acted beyond the jurisdiction and on said count, the impugned orders are liable to be quashed. Mr. Kavina, learned Senior Advocate has further submitted that appellant is the owner and occupier of the land in question and she is the purchaser, which fact has not been properly considered by the authorities below and as if there is breach of conditions of grant of land by the Page 7 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 Government, the authority has proceeded to pass an order of vesting land with the Government without any encumbrances. This jurisdictional error apparent on the record ought to have been considered by the learned Single Judge and hence, there is hardly any reason to justify the impugned orders. Mr. Percy Kavina, learned Senior Advocate has also submitted that so far as previous petition i.e. Special Civil Application 29374 of 2007 is concerned, petitioner therein was permitted to make a formal application to the Collector indicating willingness to pay premium/fine at the presently prevalent price if the authority could consider the request of the petitioner therein for regularization of the construction put up on the land, the appellant - petitioner who has filed this petition for the limited prayer as contained in paragraph 8(b) in substance cannot be singled out. Hence, learned Single Judge ought to have considered the same in proper perspective. By referring to the provisions contained under the Gujarat Land Revenue Code, he has submitted that petitioner is ready and willing to pay fine or premium prevalent and as such, order under challenge deserves to be quashed with a consequential direction to the authority to Page 8 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 consider the request of the appellant.
4. As against this, Mr. K.M. Antani, learned Assistant Government Pleader appearing on behalf of the authority has objected to the stand of the appellant - petitioner by contending that use of the land in question is unauthorizedly made by petitioner by putting up shops/gallas around 49 in numbers and therefore, there is a clear breach of conditions which necessarily invited the passing of impugned orders and authority has rightly passed the order and there is no illegality in the order under challenge as well. It has been further submitted that by virtue of provisions of Tenancy Act also, there appears to be clear violation and same having been noticed, authorities have passed the impugned order which cannot be said to be illegal or unjust. On the contrary, none of the orders which are against the appellant have been challenged and in the absence of any challenge to the said orders, no writ of mandamus be issued and it has rightly not been issued by the learned Single Judge. It has been contended that presently there is no policy of regularization prevalent and as such, consideration of request of the appellant is out of place. He Page 9 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 would contend there is hardly any reason to interfere with the order passed by the learned Single Judge. Mr. Antani, learned Assistant Government Pleader has further contended that use of the land has been clearly in conflict with the mandate of the statute and as such, not only fine is leviable, but even conversion tax or the premium is also liable to be paid by the appellant. By referring to Sections 65 and 67 of the Gujarat Land Revenue Code, it has been submitted that very purpose is defeated by putting up the construction, to this extent, there is hardly any reason for extending any equitable relief to the appellant. In fact, the learned Assistant Government Pleader has submitted that prior permission deserves to be taken, which has not been taken in the present case. Hence, appeal deserves to be dismissed.
4.1. Learned Assistant Government Pleader has however, fairly conceded that Section 79A does not permit the authorities to forfeit the land as has been ordered by the Deputy Collector which came to be later on confirmed and as such, learned Assistant Government Pleader is not fairly confronting the issue. Page 10 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022
C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 The learned Assistant Government Pleader has submitted that though powers are not available with the authority, in view of peculiar background of facts to forfeit the land with the Government without any encumbrances has been rightly passed. Hence, to that extent, learned Assistant Government Pleader has fairly conceded and has thereafter requested the Court to pass suitable orders in the interest of justice.
5. Having heard the learned advocates appearing for the parties and having gone through the material on record, it appears that learned Single Judge has summarily disposed of the petition mainly on the ground that land in question was utilized for commercial purpose without taking prior permission from the competent authority and also on the ground that subject land having been impartible tenure, appellant was not entitled to put the land for commercial use. It has been concurrently held by the authorities that even by payment of penalty or premium, no regularization can be done and thereto to the extent of 49 shops constructed over subject land. In light of aforesaid observations made by the learned Single Judge, we have noticed that no doubt, the authorities below has passed an Page 11 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 order against the appellant, but the prayer in the present petition is only to the effect that appropriate direction be issued permitting the Collector to accept the application submitted by petitioner and after receiving the same, to consider the request of the appellant to regularize the construction on payment of premium/fine at the prevalent premium and within a stipulated time by relying upon the order passed in Special Civil Application 29374 of 2007.
5.1. It is further being observed from the order passed by the Deputy Collector in Land/Case No. 1 of 2017 dated 15.02.2017 in which it has been concluded that land in question is new tenure land and has been put to commercial and non- agricultural use without obtaining prior permission. This order would indicate that originally the land was occupied by one Shri Tribhovanbhai Juthabhai as new and undivided tenure and mutation Entry 1456 was made on 15.03.1997 and land in question has been converted into old tenure for agricultural purpose and in the second column of 7/12 extract an entry is made to the effect that "entitled to premium only for non agricultural purpose" and this land has been thereafter sold Page 12 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 under a registered sale deed to one Shri Arjanbhai Revabhai and mutation of records has taken place and he in turn has sold the same to appellant on 15.04.2013 and revenue record was mutated in the name of petitioner. No doubt, it appears from the record that there is no material to the effect of prior permission having been sought while putting up construction, but this fact appears to have not been suppressed by the appellant at any point of time as can be seen from the order. The record also reveals that under similar circumstances Coordinate Bench has passed an order in Special Civil Application 29374 of 2007 in which also, the petitioner therein was permitted to submit an application before the Collector indicating his willingness to pay premium/fine at the prevalent price and respondent authorities were permitted to consider the request of petitioner for regularization of construction put up on the land in question of said Special Civil Application. This order appears to have not been followed by the authority and no decision appears to have been taken, which has led the appellant herein to approach this Court by way of present petition for the relief prayed for in paragraph 8(B), which reads Page 13 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 as under :-
"8(B) Your Lordships may be pleased to issue writ of mandamus or any other writ, order or direction, directing or permitting the Collector to accept the application made by the petitioner on receiving such application consider the request of the petitioner to regularize the construction put up by the petitioner in said land on the payment of premium/fine at the presently prevalent price within stipulated time, in accordance with the direction given by this Hon'ble Court in SCA 29374 of 2007."
5.2. Further it also appears from the records that original authority i.e. the Deputy Collector, Sanand passed the order on 15.02.2017 and same has been confirmed by higher authorities which indicate that not only it has been held therein that subject land has been put to non-agricultural and commercial use without prior approval, but has also ordered for vesting of the land with the State without any encumbrances, in exercise of power under Section 79A (a) and (b). Section 79 no doubt invest the authority the power to summarily evict a person who is unauthorizedly occupying land, which is not the case here, since the land has been purchased by the appellant under a registered sale deed and undisputedly appellant is the owner of the land in question. The only act which appellant has committed is putting the land to non-agricultural use without prior permission of the Page 14 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 authorities, seeking for either commercial use or for non- agricultural purposes and as such, Section 79(a) & (b) would not be applicable and as such, Deputy Collector has erroneously exercised the power under Section 79A of the Act. That apart from reading of this provision it would indicate that this provision is attracted it would not empower even if the authority to resume or forfeit the land with the Government, as no power of forfeiture is provided under this provision and as such, learned Assistant Government Pleader has also rightly and fairly conceded to this fact and has submitted that resumption of the land is impermissible. Hence, the order under challenge deserves to be interfered with.
5.3. In addition to this, a perusal of Section 65A of Gujarat Land Revenue Code would indicate that it deals with the procedure to be adopted if occupant wishes to apply his land from one non-agricultural purpose to another non-agricultural purpose and if it is found the same to be without permission, consequences which would flow is stipulated under Section 66 which prescribes imposition of penalty for using the land Page 15 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 without permission and the permission for such change of use can be granted on payment of conversion tax by the occupant which is reflecting from Section 67A of the Gujarat Land Revenue Code and as such, a conjoint reading of the aforesaid provisions would clearly indicate that authorities below have committed error in not exercising the jurisdiction vested with them. As a result of which, a case is made out by the appellant to interfere with.
5.4. Having regard to the fact that appellant - petitioner has not suppressed the fact of putting-up construction of 49 shops over the subject land and has come forward to pay fine/premium as the case may be, including conversion tax, the respondent authority would be at liberty to consider the same in light of the aforesaid provisions. Since appellant - petitioner is ready to pay the same, the respondent authority may consider the same in accordance with law.
5.5. Ordinarily, the Court would not have interfered with the finding of the learned Single Judge, but on perusal of overall circumstance prevailing on record and in light of the orders Page 16 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 which have been passed by the authorities below, it seems that there is a clear error on the part of the authority in assuming jurisdiction and they have to proceed to forfeit the land which power is otherwise not available and since this aspect having not been gone into by the learned Single Judge, we are of the considered opinion that order of the learned Single Judge deserves to be interfered with.
5.6. Looking to the fact that appellant has not suppressed anything about the offending construction and has disclosed the fact and shown readiness and willingness to seek regularization, if permissible in policy by paying fine/premium as the case may be, we deem it proper to direct the authority to re-consider the issue in light of the prayer which has been made by the appellant in the original proceedings. This view also get fortified from the order passed under similar circumstances by learned Single Judge in Special Civil Application No. 29374 of 2007 on 08.07.2008, where-under, liberty was given to the writ applicant therein to make appropriate application seeking regularization of the transaction and the construction put up on Page 17 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 the land and the said request having not been attended so far, the authority may consider the same in light of the relevant provisions of the Act applicable and the policy thereupon and while considering the said request, the prevalent rate may also be considered in respect of payment of fine/premium including conversion tax as well. Hence, we deem it proper to dispose of the present appeal as under :
(i) Letters Patent Appeal stands allowed.
(ii) The impugned order dated 09.02.2018 passed by the learned Single Judge in Special Civil Application No. 2353 of 2018 is hereby quashed and set aside and as a consequence thereof, respondent no. 3 -
Collector is directed to examine the application/ request submitted by the appellant for regularization and after examining the same in light of the provisions of the relevant act and the policy, an independent decision be taken on merit in accordance with law, after due compliance of principles of natural justice.
(iii) We make it clear that it would be open for the respondent authority to examine the issue and the grievance of the appellant and we have not Page 18 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022 C/LPA/432/2018 JUDGMENT DATED: 08/12/2022 expressed any opinion on merits and it is left to the discretion of the respondent authority to pass order supported by reasons.
(iv) We also make it clear that till such decision is taken, no coercive steps shall be taken against petitioner.
(v) In terms stated above, Special Civil Application 2353 of 2018 is allowed.
(vi) In view of the fact that grievance of the appellant is pending since 2007-08, the respondent authority shall consider the same as early as possible preferably within a period of eight (8) weeks from the date of receipt of of this order.
(vii) No order as to costs.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) phalguni Page 19 of 19 Downloaded on : Sat Dec 24 02:13:49 IST 2022