Gujarat High Court
Bankimchandra Bhikhubhai Desai vs State Of Gujarat & 2 on 1 February, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/521/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 521 of 2016
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BANKIMCHANDRA BHIKHUBHAI DESAI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR. JAY M THAKKAR, ADVOCATE for the Petitioner(s) No. 1
MS JYOTI BHATT, AGP ON ADVANCE COPY for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 01/02/2016
ORAL ORDER
On the ground of breach of conditions of grant, District Development Officer, Navsari by his order dated 03rd September, 2012 imposed penalty on the petitioner to the tune of Rs.49,800/- in respect of land bearing Survey No.187 situated at Village Viraval, Taluka Navsari, admeasuring 08,296 Sq. Meters. The entailing of the penalty was in view of the fact that the petitioner did not comply with the time period for non-agriculture use prescribed in the non-agriculture permission (N.A. Permission) granted in respect of the land. The petitioner preferred Revision Application under Section 211 of the Bombay Land Revenue Code, 1879 against the said order of District Development Officer which came to be dismissed by order dated 23rd April, 2015 by the Secretary (Appeals).
2. The petitioner seeks to challenge the aforesaid orders, by filing the present petition and Page 1 of 5 HC-NIC Page 1 of 5 Created On Thu Feb 04 01:43:59 IST 2016 C/SCA/521/2016 ORDER invoking jurisdiction of this Court under Article 226 of the Constitution.
3. It appears that in respect of large area of land, which included the aforesaid Survey No.187 admeasuring 08,296 Sq. Meters, the petitioner was given different non-agriculture permission on different dates related to different survey numbers. The non-agriculture permission granted in the present case was dated 23rd March, 2007. This particular area came to be divided into 59 plots. All other different survey numbers were subjected to non-agriculture permission by different orders, in the entire area a township was developed by the petitioner; in all total 496 residential houses and other buildings were constructed.
3.1 In respect of all such non-agriculture permissions, breach of conditions were detected and all the cases were subjected to penalty, by different orders passed by the District Development Officer and thereafter confirmed by the Revisional Authority. Those cases are the other different nine petitions filed by the very petitioner, dealt with and decided by separate orders in each cases but of even date.
3.2 As in all cases, the conditions on which N.A. Permission dated 23rd March, 2007 granted in this case, included the stipulation that the petitioner was required to commence the construction within six months and complete the same within one year. The petitioner failed in complying with the said conditions. It was further recorded in the order of Page 2 of 5 HC-NIC Page 2 of 5 Created On Thu Feb 04 01:43:59 IST 2016 C/SCA/521/2016 ORDER the authority that in addition to the non-adherence of condition as to the time limit as aforesaid, other breaches in the nature of illegalities in the constructions were also noticed, the place and size of common plot was found to have been changed in a manner and in the way impermissible in law; the area which was not required to be kept as common plot is treated as common plot and vice-a-versa. It is further recorded that no revised permission was obtained by the petitioner with regard to the said changes and deviations. Various conditions including the above were explicit and binding, when one looks at the order granting N.A. Permission.
4. The case of the petitioner before the authorities was inter alia that the penalty was imposed in respect of whole land. Learned advocate for the petitioner Mr.Jay Thakkar could not explain the purport of such submission. In any view, the entire township is developed by utilising different adjacent parcels of lands got converted into non-agriculture and making it one unit developing into a campus. Therefore this stand of the petitioner before the authorities rightly fell flat.
4.1 It was submitted by learned advocate for the petitioner that the condition amounted to technical breach only and that they were only directory in nature. He relied on decision of this Court in Dahyabhai Laldas (Deceased) through his heirs and legal representatives Vs State of Gujarat [1997(2) GLH 633]. In that decision, construction was not Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Feb 04 01:43:59 IST 2016 C/SCA/521/2016 ORDER completed within the specified time for the reasons beyond control of the occupant. Another decision of this Court in Jayaben w/o.Narayandas Nathumal Hemrajani Vs District Collector, Vadodara [2008(1) GLR 202], pressed into service for the similar purpose, contained the similar aspect that the construction was not completed for the reasons beyond control of the permission-holder. The Court in that case observed that the petitioner was given power to start non-agricultural usage subject to the conditions of N.A. permission. In the said decision, the Court nowhere held that conditions were to be given go-bye or not to be adhered to.
4.2 Another decision relied on of this Court in Bharwad Rukhadbhai Rudabhai Vs Competent Authority and Additional Collector [1996(3) GCD 876 (Guj)]. It was misdirect attempt to rely on the said judgment in asmuch as it was under and in respect of Section 21(1) of the Urban Land (Ceiling & Regulation) Act, 1976.
5. When asked about what compelled the petitioner not to abide by the conditions as to the time limit for commencement and completion of the construction, he submitted referring to the averments in paragraph (J) in the ground that after N.A. permission was obtained, land in question was already sold to the third parties and necessary entries were also mutated in the revenue record in their names. It was submitted that therefore the time limit regarding construction could not be adhered to. Indeed, the ground stated is not the reason acceptable either in Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Feb 04 01:43:59 IST 2016 C/SCA/521/2016 ORDER fact or in law to justify non-adherence of the conditions and all the more, it suggests that the petitioner by his own conduct attempted to freed himself from the conditions, he was otherwise enjoined to abide by and comply with. The reason given by the petitioner for non-compliance of the conditions thus perpetuates his own conduct and militates against rationality and bona fides, much less to become reasons beyond his control so as to apply the decisions he relied on.
5.1 The factum of breach of conditions could not be denied. Nor the petitioner could get out of the aspects that there were other illegalities in the nature of keeping common plot area, etc., as recorded above. The non-compliance of conditions and other breaches having been established, no ground sustains against imposition of penalty.
6. In the circumstances, order of penalty passed by the District Development Officer and confirmed by the Revisional Authority could not be said to be booking any error so as to require interference of this Court in the writ jurisdiction. The impugned orders being eminently just, proper and legal, no case is made out.
7. Petition is devoid of merits. The same is dismissed summarily.
(N.V.ANJARIA, J.) Anup Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Feb 04 01:43:59 IST 2016