Gujarat High Court
Charotar Coop. Hous. Soc. Ltd Thro ... vs District Registrar on 17 February, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/15762/2012 ORDER DATED: 17/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15762 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 7938 of 2011
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CHAROTAR COOP. HOUS. SOC. LTD THRO CHAIRMAN
Versus
DISTRICT REGISTRAR & 3 other(s)
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MR TRUPESH KATHIRIYA, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 17/02/2022
COMMON ORAL ORDER
Heard learned advocate Mr.A.S.Asthavadi for the petitioner and learned Assistant Government Pleader Mr.Trupesh Kathiriya for the respondents through video conference.
1. The Special Civil Application NO.7938 of 2011 is filed by the petitioner-Society with the following prayers :
"(a) This Honourable Court may be pleased to admit and allow this petition.
(b) This Honourable Court may be pleased to call for the original file of the present matter from the authority.
(c) This Honourable Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the order dated 28-04-2011 passed by the respondent no. 1.
(d)This Honourable Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus or Page 1 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 any other appropriate writ, order or direction, directing the Respo No.1 to take necessary action to mutate the name of the petitioner society in the revenue record and further allow the constructions of the houses at the land as per the terms of agreement.
(e)Pending hearing and final disposal of this petition, this Honourable Court may be pleased to grant interim relief by staying the execution, operation and implementation of the order dated 28-
04-2011 passed by the respondent no.1 herein;
(f)Any other and further relief, which this Honourable Court deems fit and proper in the facts and circumstances, may please be granted."
2. The brief facts of the case are as under :
2.1. The petitioner-Society is a Co-operative housing society, which was formed in the year 1980 with an object to construct houses for its members who are belonging to the community, which is Socially and Educationally Backward Community.
2.2. It is the case of the petitioner that the Society was established with a purpose to acquire land, and thereafter, eventually to construct houses for its members. The petitioner-Society had approached the State Government and therefore, a resolution was passed for acquiring two parcels of land situated at Survey No.108A having Final Plot No.29 and Survey No.102 having Final Plot No.31/2 at Petlad, District Anand. It is the case of the petitioner that the notification under Land Acquisition Act was issued in the Gujarat Government Gazette on 16th Page 2 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 July 1983 by the Revenue Department, Sachivalaya, Gandhinagar.
2.3. Thereafter, the State Government followed due procedure of law and eventually, an award under Section 11 of the Land Acquisition Act was published by the Special Land Acquisition Officer (Mahi Canal, Nadiad) on 23rd September 1985.
2.4. The Society as consideration towards payment for the said land deposited amount of Rs.1,29,409/- in the Government Treasury during the year 1981 and 1987-88 by Government Challans.
2.5. The possession of lands bearing Final Plot No.31/2 admeasuring 2620 Sq. Mtrs. and Final Plot No.29 admeasuring 4632 Sq. Mtrs. which were acquired under the Land Acquisition Act by the State Government, after following due procedure, was handed over to the Society on 29.06.1991, and on 18.03.1987 respectively.
2.6. It is the case of the petitioner that in view of the said award, a change entry No.6680 dated 13.09.1991 was mutated in the revenue record in respect of Revenue Survey No.108/A. The said entry was challenged by the Ganotiya of the said land Shri Somabhai Amarsan Gohil being Takrari Case No.10 of 1992. The said objection Page 3 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 was accepted by the Mamlatdar, Petlad, and therefore, the petitioner filed an appeal before the Deputy Collector, Petlad being RTS Appeal No.49 of 1994. The said appeal was allowed by order dated 21.07.1994 and the entry was approved. The Ganotiya Shri Somabhai Amarsang filed an application before the Collector being RTS No.119 of 1994. The same was rejected by the Collector, Anand on 29.12.1997. The order of the Collector, Anand was challenged by the Ganotiya Shri Somabhai Amarsang by filing Revision Application No.9 of 1998 before Additional Chief Secretary (Appeals), Gujarat State. The said Revision Application was withdrawn by the said Ganotiya Shri Somabhai Amarsang, and therefore, the said revision application was disposed of by order dated 17.04.2006.
2.7. It is the case of the petitioner that as far as another parcel of land bearing Survey No.102 having Final Plot No.31/2 is concerned, a Change Entry No.9143 was mutated in the revenue record on 27.01.2001 and the same was certified by the Deputy Mamlatdar on 31.05.2001. It is the case of the petitioner that the said land bearing Final Plot No.31/2 was earlier owned by the Pujari of Shri Laxminarayan Temple --Shri Aniruddhprasad. It is submitted that the heirs of said Shri Aniruddhprasad objected the said entry by filing Page 4 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 RTS Appeal No.37 of 2001 before the Deputy Collector, Petlad. The Deputy Collector, Petlad by order dated 28.11.2001 quashed the decision of the Deputy Mamlatdar and remanded the matter to Mamlatdar, Petlad. The Mamlatdar, Petlad, by order dated 5th December 2006, certified the Change Entry No.9143, dated 27.01.2001.
2.8. Thereafter, the petitioner approached the Planning Department, Nadiad for approval of plans for its Society in 2001.
2.9. It is the case of the petitioner that however, as the challenge with reference to entry no.9143, dated 27.01.2001 was pending before the concerned authority till 2006, the construction permission on the said land was denied to the petitioner by the concerned authority.
2.10. It is submitted that even as on 30.11.2006, the revenue record of City Survey No.102 shows the name of the tenants and erstwhile owners and not the petitioner.
2.11. It is submitted that the said order dated 05-12-2006 has not been challenged by the objector, however, the said objectors - heirs of deceased Aniruddhprasad (original owner of Final Plot No.31/2) filed an application before the Page 5 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 District Registrar, Cooperative Societies, Anand with a prayer that as the Society has not fulfilled its objects of construction of the houses till 2006, the registration of the Society may be cancelled. The District Registrar was pleased to cancel the registration of the Society by its order dated 09.10.2006.
2.12. The said order was challenged by the petitioner by filing Revision Application No.80 of 2006 before the Additional Registrar (Appeals), Cooperative Societies, Gandhinagar which was allowed and the order of District Registrar, dated 09.10.2006 was set aside.
2.13. The objector - Rakeshkumar Aniruddhprasad Vyas filed Revision Application No.5 of 2007 before the Deputy Secretary (Appeals), Agricultural & Cooperative Department, Sachivalaya, Gandhinagar who by order dated 10.10.2007, allowed the revision and confirmed the order dated 09.10.2006 passed by the District Registrar, canceling the registration of the Society.
2.14. The petitioner challenged the said order before this Court by filing Special Civil Application No.189 of 2008. This Court (Coram:
Honourable Mr. Justice Jayant Patel, J) quashed Page 6 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 and set aside the said order vide order dated 12.02.2008 and remanded the matter before Deputy Secretary (Appeals) with a direction to pass speaking order.
2.15. It is the case of the petitioner that the Deputy Secretary (Appeals), after hearing both the parties, again passed an order in Revision Application No.5 of 2007 on 16.05.2008, allowing the said Revision Application in favour of the objector.
2.16. The petitioner again approached this Court by way of Special Civil Application No.10163 of 2008, challenging the order of the Deputy Secretary dated 16.05.2008. However, the said Special Civil Application was withdrawn by the petitioner with a view to again approach the authority by appropriate application to point out certain factual aspects of the matter which were not properly considered by the Deputy Secretary (Appeals).
2.17.The petitioner thereafter filed Review Application in Revision Application No.5 of 2007.
However, the said application was dismissed by the Dy Secretary and hence, the petitioner filed another Special Civil Application No.13957 of 2009.
Page 7 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022C/SCA/15762/2012 ORDER DATED: 17/02/2022 2.18. The petitioner was served with a notice dated 03-12-2004 for releasing Final Plot No.31/2 at Petlad from the land acquisition in view of the letter of the revenue department dated 20.10.2004. Hence, petitioner filed Special Civil Application No.11416 of 2008 challenging the said notice.
2.19. It is the case of the petitioner that both the matters were heard and allowed by order dated 05.08.2010 and the quashing and setting aside the order and notice in both the petitions, with liberty to the authority to issue fresh notice and decide the matter on hearing the petitioner society.
2.20. The petitioner therefore approached the Mamlatdar, Petlad by appicaiton dated 16.09.2010 to mutate the name of the Society in the revenue record.
2.21. However, meanwhile, the Collector issued the notice dated 24.12.2010 to the petitioner for resumption of the land in question which was replied on 06.01.2011.
2.22. The Collector passed an order dated 28.04.2011 for resumption of land in question.
Page 8 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022C/SCA/15762/2012 ORDER DATED: 17/02/2022 The District Registrar of Co-operative Societies also passed the order dated 09.06.2011 for liquidation of the petitioner-Society. The order passed by the District Registrar was challenged in Appeal and thereafter, in revision and by order dated 26th September, 2012, the Revision Application No.517 of 2011 was ordered to be dismissed.
3. The petitioner-Society has therefore, preferred Special Civil Application No.15762 of 2012 with the following prayers :
"A. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction by quashing and setting aside the orders passed by Respondents herein dt.26/9/2012, Dt.9/6/2011 and 2/7/2011 ordering the winding up of the applicant society in the interest of justice.
B. Pending hearing and final disposal of this petition, Your Lordships may be pleased to Stay the Operation, implementation and execution of orders dt.26/9/2012, Dt.9/6/2011 and 2/7/2011 ordering the winding up of the applicant society.
C. This Hon'ble Court may be pleased to pass any other and further order that may be deemed, fit and proper in the interest of justice."
4.1. Learned advocate Mr.Asthavadi for the petitioner-Society, which is under liquidation, submitted that a further affidavit is filed pursuant to the order passed by this Court on 20 th January, 2022 to place on record the status of the members of the petitioner-Society. It was Page 9 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 pointed out that on date of filing of the further affidavit dated 5th February, 2022, there are 23 members in the petitioner-Society as on 31.03.2010.
4.2. It was submitted that there were originally 35 members of the Society at the time of registration in the year 1980 which has reduced, after 30 years, to 23 members out of which 7 members have expired.
4.3. Learned advocate Mr.Asthavadi submitted that the petitioner-Society was allotted two plots by land acquisition award passed on 23rd September, 1985 and the petitioner-Society paid a sum of Rs.1,29,409/- and possession of the land situated at Survey No.108A, having Final Plot No.29 admeasuring 4632 Sq.Mtrs, and land situated at Plot No.102 having Final Plot No.31/2 admeasuring 2620 Sq.Mtrs at Petlad Town, District-Anand was handed over to the petitioner.
4.4. It was further submitted that the respondent- Collector has initiate the proceedings so far as Plot No.102 only and no proceedings are initiated so far as Plot No.108A is concerned and therefore, the impugned order passed by the Collector confiscating the land of both the plots cannot be sustained.
4.5. It was submitted that the State Government Page 10 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 acquired the land for the members of the petitioner-Society, though members of the petitioner-Society belong to the weaker section of the Society having no residence.
4.6. It was therefore, submitted that the Collector has passed the order dated 28.04.2011 without considering the fact that the members of the petitioner-Society could not construct the residential house as per the sanctioned plan in the year 2001 due to various proceedings initiated by the original owners of the land in question challenging the revenue entry passed pursuant to the land acquisition award passed in the year 1985.
4.7. It was submitted that as the members of the petitioner-Society were prevented due to litigation, they could not make construction on the land and if Plot No.108A, admeasuring 4620 Sq.Mtrs, is returned back to the petitioner- Society, the 23 members can construct the residential house on such land. It was submitted that as per the details produced with the further affidavit, only 10 members out of 23 members are having their residential house in the Petlad town over a period of time.
5. On the other hand, learned Assistant Government Pleader Mr.Trupesh Kathiriya submitted that both the petitions are not maintainable as Page 11 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 the same are filed by the petitioner-Society which is already ordered to be taken into liquidation vide over dated 09.06.2011 passed by the District Registrar.
5.1. It was submitted that the members of the petitioner-Society never constructed residential house on the land which was acquired by the Government in the year 1985 till 2011 and therefore, the Collector has rightly passed the order of resumption of the land for breach of the condition of the agreement which was entered into between the Government and the petitioner-Society in the year 1985.
5.2. Learned Assistant Government Pleader Mr.Kathiriya for the respondents relied upon the following averments made in the affidavit-in- reply filed on behalf of the State Government :
"6. I say and submit that the main object of the petitioner society is to give residential houses to the weaker section of the society but looking to the record of the petitioner society, most of the members of the petitioner society are possessing another residential houses and in view of that, there is a breach of bye-lay 2 and 8 of the bye-laws of the petitioner society. I submit that there is also breach of byelaw 10[1] by the petitioner society. Further more, the accounts of petitioner Society were not properly maintained and checked. I submit that during these years, only two times the accounts of petitioner society were checked and audited. I further submit that learned secretary has also held that the petitioners society has not taken any steps to get the land for non agriculture purpose nor they have submitted the plans and no permission from any of the government authority has been obtained. They Page 12 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 have not taken any steps and in view of that, there is a breach of byelaw 11. Not only that the petitioner society has not started construction and the so called members are not the local residents of Petlad but the said members of residents of nearby villages and cities like Gandhinagar, Anand etc. and they all the well to do persons and having sufficient means to earn and they are not from backward class or downtrodden persons and in view of that the object of the petitioner Society is frustrated and there is breach of byelaw 6[1] [2] [3] and 7 and 8 and therefore, the learneg gecretary has rightly Cancelled the registration of the petitioner society.
7. I submit that survey no. 108/A was also acquired for the purpose of petitioner society. It has been given final plot No. 29 in Town Planning Scheme and petitioner society has been handed over the said land on 18.03.1987 and there was not a single proceeding for this land against the society or between original owner and tenant, in fact, there was no dispute as far as survey no.108/A is concerned, in spite of that, the petitioner society has not taken any steps under the guise that litigation is pending. This shows inaction on the Part of petitioner society. This was done with a view to earn more money from the members and / or to give the said land to relatives and close persons. I submit that in view of that petitioner society has not taken action thereby Societ has committed the breach of number of byelaws. It is submitted that the Chairman or the Petitioner soctety himself has stated that 13 members of the petitioner society are already having their own houses and therefore it is very clear that the original members of the petitioner society are not qualified to be members of the society and on the basis of false undertaking and explanation the land has been obtained by the petitioner society and therefore the condition of agreement have been breached.
8.I submit that even the society has not been registered as society for the purpose of providing residential units to the persons, who are coming from weaker section of the Society, on the contrary, looking to the registrarion certificate, it was registered as General Society and therefore, it is not a Society for the purpose of and for the benefit of backward class or persons from downtrodden society and therefore, the learned Secretary has rightly cancelled the registration of the petitioner society Page 13 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 and no interference of this Hon'ble court under Article 226 of the Constitution of India is required.
9. I submit that at the time of granting land to the petitioner society, petitioner society has signed an agreement / undertaking, in which, the petitioner society has agreed that they undertaken to start construction of the houses within a period of six months from the date of awarding possession and also complete the same within two years. In the present case, the petitioner society has been awarded possession long back so far they have not even started Construction and therefore, there was no question of completing the same within two years. In view of that, there is clear breach of undertaking / agreement executed by the petitioner. A copy of said undertaking / agreement executed by petitioner trust ig annexed hereto and marked as Annexure "II".
10. I submit that even the President of the petitioner society namely Parshottambhai Jethabhai Parmar and other members of the petitioner Society are involved in irregularities and misappropriation of funds in other Society and in view of that, District Registrar, Cooperative Society, Anand has addressed a letter dated 17.10.2004 to District Primary Education Officer, stating that Petitioner is one of the persons, wne has committed misappropriation in the Society and complaint is also filed before the learned Board of Nominees."
5.3. Relying upon the aforesaid averments, it was submitted that no interference is required to be made in the impugned order passed by the Collector as the same is passed after following the principles of natural justice as directed by this Court in the order dated 05.08.2010 in Special Civil Application No.11416 of 2008 with Special Civil Application No.13957 of 2009 filed by the petitioner-Society.
6. Having considered the submissions of learned advocates for the respective parties as well as Page 14 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 on perusal of the documents available on record, it appears that the petitioner-Society after being registered in the year 1980, was granted the land in question in the year 1985 and thereafter, the petitioner-Society did not take any action for construction of residential houses for its members on the pretext that RTS proceedings initiated by the original owners. The plans were also sanctioned by the competent authority in the year 2001. As per the terms and conditions of the agreement, the members of the petitioner-Society were supposed to start construction within six months from the date of handing over of the possession.
7. It is required to be noted that after passing of the award under the Land Acquisition Act, acquiring the land in question by the State Government for allotment to the petitioner in the year 1985, there cannot be any dispute with regard to the title of the land in the name of the petitioner and the RTS proceedings, which pertains to the entries in the revenue record, cannot be considered as an impediment for the members of the petitioner-Society to start construction on the land in question in absence of any stay order passed by any competent authority against the use of the land which was allotted to the members of the petitioner-Society in the year 1985 for construction of residential houses.
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8. It is also required to be noted that the main object of land acquisition made by the State Government for the members of the petitioner- Society to make available the land for the homeless citizens of weaker section and in spite of such acquisition in the year 1985, the members of the petitioner-Society did not take any action for more than 30 years and as such, the very purpose and object of acquisition has been frustrated as rightly held by the Collector.
9. The Collector has rightly held that there was breach of the condition Nos.1 to 9 of the agreement executed between the members of the petitioner-Society and the Government for allotment of the land and therefore, as per condition No.6 of the agreement, the Collector has rightly passed the impugned order for resumption of the land to the Government. Condition No.6 of the agreement reads as under :
"6. In case the said lands are not used for the purpose for which they are acquired s hereinbefore recited or are used for any other purpose or in case the Society commits a breach of any of the conditions hereof, the said jands together with the buildings, if any erected thereon, shall be liable to resumption by the Government subject, however, to the condition that the amount spent by the Society for acquisition of the said lands or their value as under developed lands at the time of resumption, whichever is less (but excluding the cost or value of any structure standing on the said lands) shall be paid as compensation to the Society.
Provided that the said land and the buildings, if any Page 16 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022 C/SCA/15762/2012 ORDER DATED: 17/02/2022 erected thereon shall not be to resument, unless due notice of the breach complained of, has been given to the Society and the Society has failed to make good the breach or to comply with any directions issued by the Government in this behale within the time specified in the said Notice for compliance therewith."
10. It is not in dispute that the land which was acquired by the State Government, was never put to use for the purpose of which it was acquired and therefore, the same is rightly ordered to be resumed by the Collector. However, the order of the Collector does not specify about the return of the amount as per the condition No.6 of the agreement to the members of the petitioner- Society. The impugned order passed by the Collector is therefore, required to be modified to that extent by directing the Collector to comply with the condition No.6 by returning the amount spent by the petitoner-Society at the relevant time for acquisition of the land in question or the value as underdeveloped land at the time of resumption which ever is less excluding the cost or value of any structure standing on such land.
11. It is not in dispute that the petitioner- Society has paid Rs.1,29,409/- in the year 1987 at the time of handing over of the possession of the land in question by the State Government. In such circumstances, impugned order passed by the Collector is modified to the aforesaid extent.
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12. With regard to the Special Civil Application No.15762 of 2012 is concerned, the Assistant Registrar (Appeals) and the Deputy Secretary (Appeals), in the impugned orders passed in Revision Applications, have recorded concurrent finding of fact to the effect that no activity is carried out by the Society (in liquidation) and therefore, no interference is required to be made while exercising extra-ordinary jurisdiction under Article 227 of the Constitution of India.
13. In view of the foregoing reasons, Special Civil Application No.15762 of 2012 is dismissed. Rule is discharged.
14. So far as the Special Civil Application No.7938 of 2011 is concerned, the same is partly allowed by modifying the order dated 28.04.2011 passed by the Collector to comply with the condition No.6 of the agreement entered into by the State Government while allotting the land in question for refund of the amount in terms of the said condition to the members of the petitioner- Society. Rule is made absolute to the aforesaid extent.
(BHARGAV D. KARIA, J) PALAK Page 18 of 18 Downloaded on : Thu Feb 24 20:14:34 IST 2022