Gujarat High Court
Jivanjyoti Coop. Hou. Soc.Ltd Rajkot. ... vs State Of Gujarat Through The Secretary & ... on 29 April, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/8237/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8237 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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JIVANJYOTI COOP. HOU. SOC.LTD RAJKOT. THROUGH CHAIRMAN
-....Petitioner(s)
Versus
STATE OF GUJARAT THROUGH THE SECRETARY & 2....Respondent(s)
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Appearance:
MR CHINMAY M GANDHI, ADVOCATE for the Petitioner(s) No. 1
MR MB GANDHI, ADVOCATE for the Petitioner(s) No. 1
MR BHARAT VYAS, AGP for the Respondent(s) No. 1 - 2
MR JAYANT P BHATT, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 29/04/2014
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C/SCA/8237/2012 CAV JUDGMENT
CAV JUDGMENT
1. Heard learned advocate Mr.M.B.Gandhi for the petitioner, learned AGP Mr.Bharat Vyas for respondent Nos.1 and 2 and learned advocate Mr.Janayt P.Bhatt for respondent No.3.
2. The prayers sought for in the present petition read as under.
"20. a) This Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the order dated 17.01.2012 (Annexure-S) holding and declaring the same as illegal and void and be further pleased to issue mandate to the respondent herein to allot the land bearing Final Plot Nos.97 and 99 admeasuring 4263 sq.mtrs. Of Survey No.123 of T.P.Scheme No.5, Rajkot to the petitioner society.
(aa) In the alternative, if the
respondents nos.1 and 2 are not in a
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C/SCA/8237/2012 CAV JUDGMENT
position to allocate the land demanded by the petitioner society, then in that case, any other land either of Survey No.102 of T.P.Scheme No.5 of Rajkot or any other land in Rajkot, which the Government is capable to a lot to the present petitioner society, for that land procedure be completed at the earliest and allotment be made to the petitioner society.
(aaa) Pending admission, hearing and/or final disposal of this petition, this Honourable Court be pleased to direct the respondents herein not to make an allotment of any land as per the government policy to anyone and the directions be issued by this Honourable Court to the respondents herein to bring the list of allotment of survey No.123 of T.P.Scheme No.5 so as to ascertain as to which land is lying vacant for allotment to the petitioner society."
3. In light of the submissions made by learned advocates for the parties, I have carefully gone through the documents produced by the petitioner vide Annexures-A to U and Page 3 of 20 C/SCA/8237/2012 CAV JUDGMENT considering the long communication which has started vide letter dated 1.10.2001 and continued upto the impugned order passed on 17.1.2012, copy of which is at Annexure-S to the petition and in light of the said documents, the issue related to allotment of land is required to be considered which is involved in the present petition. It is not under dispute that way back in the year 2001, the application was made by the petitioner cooperative housing society in which they have shown several plots which are belonging to the Government and which were meant for the purpose of allotment for different purposes including construction of the society by the Scheduled Caste and Scheduled Tribes community and, therefore, six different sites were shown by the petitioner in its said application which was made by the said society on 1.10.2001. Referring to the same and referring to the relevant documents annexed with this petition, it appears that the Collector also collected all the evidence and submitted the same to the Revenue Department. Page 4 of 20 C/SCA/8237/2012 CAV JUDGMENT Thereafter, as per the Government format, 40 points table, which is required to be submitted before the final order, was also completed way back in the year 2003 and thereafter, by various correspondence in spite of the fact that documents being on record, the Revenue Department raised the objection and called upon the Collector to provide material which the Collector has provided and the present petitioner i.e. Jivan Jyot Cooperative Housing Society was also constantly appears to be in touch with the Collector and provided all the materials which were required and asked for at the relevant point of time. It appears that, ultimately, the representations were made but in the year 2012, the petitioner was informed that the decision was taken in the year 2008 that the land which was identified for the petitioner and referred in earlier correspondence was taken into reservation in the year 2008 and the said land is reserved for the Government for public purpose and as such, the said demarcated land for the petitioner Page 5 of 20 C/SCA/8237/2012 CAV JUDGMENT being very costly land and situated in the prime location and considering the interest of the society and also considering the fact that it is situated within 10 kms radius of Rajkot City and in light of the Government Circular dated 15.7.1988, it cannot be allotted to the petitioner. Learned advocate for the petitioner has submitted that, as such, the decision which has been taken and alleged to have informed vide letter dated 19.9.2008 was never served upon the petitioner and vide letter dated 17.1.2012, the petitioner society was informed regarding the above referred decision taken by the respondent reserving the land and allotting the same to other Government purpose is nothing but arbitrary and illegal action and the same is in violation of Article 14 of the Constitution of India as well as in violation of fundamental right and principles of State policy and, therefore, the same is liable to be set aside and this petition should be allowed accordingly.
Page 6 of 20 C/SCA/8237/2012 CAV JUDGMENT 3.1 Learned advocate for the petitioner has also submitted that though the land of plot Nos.97 and 99 which were to be allotted to the petitioner society, but referring to the impugned order, it seems that in the year 2008, though there was no communication to the petitioner and the petitioner was not aware regarding the allotment of the land admeasuring about 2459 square meters of Final Plot No.99 to the Rural Development and Self Employment Training Institute ("RUDSETI" for short) and the panchnama is also made according to the respondents and the same is also produced on record of the case, then also if chronology of the documents which are forthcoming on record be perused carefully, it is clear that just to oust the petitioner from having and fulfilling their dream related to plot Nos.97 and 99, deliberate action of transfer of some part of land appears to have been made by the respondents with some oblique motive and so, the said action, as such, appears against the principles of natural justice because since 2001 Page 7 of 20 C/SCA/8237/2012 CAV JUDGMENT to 2008 or upto the year 2012, assurance had been given; progress had been shown on record of the particular department and the plan was also prepared on their demand identifying the plot on paper of each member of the petitioner society in the land of plot Nos.97 and 99 situated at mouje Nanamava being Survey No.123 paiki and in spite of the fact that the petitioner society was ready and willing to deposit the amount which has been fixed by the respondents and while giving the last sanction, the respondents have transferred one of the plots i.e. plot No.99 and alleged to have given reply to the effect that allotment of plot as asked for by the petitioner is now not possible is the action which is, as such, not tenable in the eye of law because the said action on the part of the respondents is a clear discrimination to the petitioner society which is, as such, a society formed for absolutely downtrodden class of the society. Lastly, learned advocate for the petitioner has submitted that if at all, the land referred hereinabove demanded by Page 8 of 20 C/SCA/8237/2012 CAV JUDGMENT the petitioner society is not available, then in that case, any other land which is available in Survey No.123 of village Nanamava or any other Government land which the Government is able to allocate to the petitioner society, be allotted to it and the petitioner society is willing to accept the said decision of the respondents to be taken as referred above.
4. Learned AGP Mr.Bharat Vyas for respondent Nos.1 and 2 has drawn attention of this Court on the affidavit dated 3.10.2012 filed by respondent No.1 and additional affidavit-in- reply dated 15.4.2014 filed on behalf of respondent No.2 and has submitted that by preferring the present petition, the petitioner society has challenged the communication dated 17.1.2012 at Annexure-S - page 75 and sought prayer to allot Final Plot Nos.97 and 99 admeasuring 4263 square meters of Survey No.123 of Town Planning Scheme No.5 Rajkot. The application of the petitioner society has been Page 9 of 20 C/SCA/8237/2012 CAV JUDGMENT scrutinized and forwarded for approval to the State Government, but due to policy of the State Government as envisaged under Government Resolution dated 15.7.1988 the land falls within radius of 10 kms from the city limit is to be reserved for public purpose and, therefore, the State Government in Revenue Department has scrutinized the proposal forwarded by the present respondent No.2 authority, but it has been found that the land in question falls within the radius of 10 kms from the city limit and, therefore, the State Government by its communication dated 8.9.2008 rejected the proposal of allocation of the land as demanded by the petitioner society and accordingly, the office of respondent No.2 by its communication dated 19.9.2008 informed the said decision of rejection of the application taken by the authority to the petitioner society which was also forwarded through under postal certificate on 20.9.2008. Copy of the said under postal certificate is annexed at Annexure-FA-I and as the land selected by the petitioner is Page 10 of 20 C/SCA/8237/2012 CAV JUDGMENT already allotted for public purpose to the RUDSETI by order dated 12.11.2008 and the possession of the land is handed over on 14.11.2008 by drawing panchnama to that effect, the present petition should be dismissed because if, at all, the application submitted by the petitioner society was scrutinized positively at the relevant point of time does not mean that the petitioner society becomes entitled for allotment of the land or it has created any legal right or promissory estoppel in favour of the petitioner society. Moreover, none of the fundamental rights or legal right of the petitioner society have been violated because of any action or inaction on the part of the present respondents and, therefore, the present petition is not maintainable in law and accordingly, the same deserves to be dismissed.
5. I have considered the above referred submissions made by learned advocates for the parties in light of the documents forthcoming on Page 11 of 20 C/SCA/8237/2012 CAV JUDGMENT record. Referring to Annexure-FA-I, prima facie, it appears that letter dated 19.9.2008 written by respondent No.2 addressed to the present petitioner appears to have been forwarded through the UPC on 20.9.2008. Before considering the aspect of decision of rejection of demand of land in question taken by respondent No.1 herein, the conduct of the respondents which is forthcoming on record also deserves to be considered and in light of the same, further order is required to be passed. It is the case of the respondents that the Revenue Department has scrutinized the proposal forwarded by the present respondent No.2 authority, but it is found that the land in question falls within radius of 10 kms from the city limit and, therefore, the State Government by its communication dated 8.9.2008 rejected the proposal of allocation of land as demanded by the petitioner society, copy of which is at Annexure- R2 - page 223 and in turn, respondent No.2 alleged to have forwarded the letter to that effect on 19.9.2008 to the petitioner society, Page 12 of 20 C/SCA/8237/2012 CAV JUDGMENT copy of which is at Annexure-R-V, page 103. It is pertinent to note at this juncture that referring to both the said letters, it talk about Survey No.123 paiki admeasuring 4263 square meters land situated at Nanamava, Taluka - District Rajkot. It is also the case of the respondents that on 12.11.2008, the said land was allotted to RUDSETI and the possession of the land is handed over on 14.11.2008 and copy of the said order dated 12.11.2008 as well as copy of the panchnama dated 14.11.2008 are respectively at pages 104 and 109. Referring to the order dated 12.11.2008, it appears that concerned official of the District Rural Development Agency, Rajkot has put its demand on 12.8.2008 related to the land of Final Plot Nos.98, 99 and 100 paiki of Town Planning Scheme No.5 Rajkot. Combined reading of all the above referred documents, it appears that on 12.8.2008, the official of the District Rural Development Agency has put its demand as referred hereinabove and on 12.11.2008, the order of allotment of land at Page 13 of 20 C/SCA/8237/2012 CAV JUDGMENT Annexure-R-VI page 104 has been passed and after one day, possession of the said land was also handed over by drawing the panchnama to that effect on 14.11.2008, copy of which is at Annexure-R-VII page 109. Further, referring to the order dated 12.11.2008, it appears that certain conditions were imposed and on the basis of the said conditions, the land shown in the order dated 12.11.2008 at Annexure-R-VI was allotted. Referring to condition No.2, it appears that the said land was allotted for the purpose of establishment of RUDSETI and the concerned District Rural Development Agency was supposed to commence with the construction within six months after approval of the construction plan from the municipal corporation and within two years, the said constructed property was supposed to be utilized and if the land will remain idle for more period without being utilized for the purpose, or if it is found that there is breach of any of the condition, in that case, the Revenue Department of the Government of Gujarat Page 14 of 20 C/SCA/8237/2012 CAV JUDGMENT would take back the said land. In light of this, if we peruse the document procured under the Right to Information Act, 2005 by the petitioner society at Annexure-A along with its additional affidavit at page 122 and referring to the remarks made against serial No.4 which is related to Final Plot No.99, it appears that though it is alleged that after drawing panchnama dated 14.11.2008, the possession of land shown in it, was handed over to the District Rural Development Agency i.e. RUDSETI, upto 2.12.2013, the construction has not commenced and thepermission of construction by the concerned department to the District Rural Development Agency has yet not been given. In short, prima facie, it appears that condition referred hereinabove appears to have not been complied with in its letter and spirit by the District Rural Development Agency as referred above, but this Court is quite aware with the fact that the same is not the issue before this Court and accordingly, this Court thought it fit not to discuss that issue any Page 15 of 20 C/SCA/8237/2012 CAV JUDGMENT more.
5.1 As referred hereinabove, the petitioner society has put forth its demand for the land in question in the year 2001. As per the case of the respondents, because of the policy of the State Government as envisaged under Government Resolution dated 15.7.1988, the land, falling within radius of 10 kms from the city limit, was required to be reserved for public purpose. When respondent No.2 - Collector has proceeded further with the demand put forth by the petitioner society vide its letter dated 1.10.2001, the said Government Resolution dated 15.7.1988 was very much in force. It has not come on record whether in the year 2001 the land in question i.e. Final Plot Nos.97 and 99 of village Nanamava, Taluka - District Rajkot was covered within radius of 10 kms from the city limit of Rajkot or not. For the sake of argument, if we presume that the said land of village Nanamava was covered within radius of 10 kms from city limit of Rajkot which Page 16 of 20 C/SCA/8237/2012 CAV JUDGMENT was required to be reserved for public purpose, then in that circumstances, as to why respondent No.2 has proceeded further with the demand put forth by the petitioner society and as to why the said demand has been processed upto the year 2008. In short, as referred hereinabove, the petitioner society has shown its readiness and willingness to accept any land to be allocated to the petitioner society by the respondents outside radius of 10 kms from the city limit of Rajkot, then, in my view, the respondents should consider that proposal in its right spirit, more particularly, when approximately in 146 cases between the period 1994 and 2008, the land appears to have been allotted for the purpose of Industry, Religion, Residential, Community Hall, Lodging and Boarding, Madrasa and Ayurvedic Hospital etc. as it appears from the documents produced by the petitioner society vide pages 78 to 87. Learned AGP Mr.Bharat Vyas for respondent Nos.1 and 2 has submitted that the petitioner society is free to make an application for Page 17 of 20 C/SCA/8237/2012 CAV JUDGMENT allotment of land outside the area of 10 kms from the city limit of Rajkot and the same will be considered by the concerned department following the due procedure for the same. As discussed hereinabove, considering various long communications entered into between the petitioner society and respondents from 2001 to 2008 and at the feg end when the consent was likely to be given by respondent No.1, the respondents have rejected the application on the ground that Final Plot Nos.97 and 99 to be allotted to the petitioner society is falling within radius of 10 kms from the city limit of Rajkot which was required to be reserved for public purpose and as referred hereinabove, later on, out of two final plots, one final plot i.e. Final Plot No.99 was allotted to RUDSETI. Learned advocate for the petitioner society has submitted that under the above circumstances, now the petitioner society is not required to undertake this exercise again submitting fresh application / demand for grant of land, but under Page 18 of 20 C/SCA/8237/2012 CAV JUDGMENT the above referred circumstances, this Court should give direction to the respondents herein to open earlier file which was relating to Final Plot Nos.97 and 99, which has commenced with the letter dated 1.10.2001 and treating the said application dated 1.10.2001 to be given for the land situated outside 10 kms from the city limit of Rajkot and shall consider the same accordingly following due procedure in this regard.
6. Under the circumstances, the petition, in my view, deserves to be partly allowed and accordingly, it is partly allowed. Respondent No.2 herein is directed to open earlier file so far as the petitioner society is concerned which has commenced with its letter dated 1.10.2001 and proceed further for consideration of issue involved in it at any place outside 10 kms limit of city of Rajkot in accordance with law and sympathetically more particularly, when the members of the petitioner society are from downtrodden class of the society. Rule is made Page 19 of 20 C/SCA/8237/2012 CAV JUDGMENT absolute to the aforesaid extent. No order as to costs.
(G.B.SHAH, J.) pathan Page 20 of 20