Gujarat High Court
State Of Gujarat vs Saiyad Asgarali Abdremansha on 6 December, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/MCA/1343/2024 ORDER DATED: 06/12/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1343 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 24438 of 2022
================================================================
STATE OF GUJARAT & ANR.
Versus
SAIYAD ASGARALI ABDREMANSHA
================================================================
Appearance:
MR. MAYANK CHAVDA, AGP for the Applicant(s) No. 1,2
MR. S. P. MAJMUDAR with MR. MRUGESH A BAROT(6709) for the
Opponent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 06/12/2024
ORAL ORDER
1. This application is filed by the State for recalling of an order passed by this Court. The relief prayed for is as under:-
" A) ***** B) The applicant humbly prays to accept and approve the authorities meeting Note dated 13.02.2024 as a proper and valid compliance pursuant to the order dated 23.12.2022 passed in Special Civil Application No.24438 of 2022.
C) This Hon'ble Court may kindly be pleased to recall the order dated 23.12.2022 in Special Civil Application No.24438 of 2022 and be pleased to review the same.
D) Pending admission and final hearing of the present applicant, this Hon'ble Court may be pleased to stay the operation and implementation of the order dated 23.12.2022 in Special Civil Application No.24438 of 2022.Page 1 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024
NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined E) The Hon'ble Court be pleased to review the judgment and order dated 23.12.2022 passed by this Court in Special Civil Application No.24438 of 2022 in the interest of justice. F) *****"
2. The original petitions being Special Civil Application No.24438 of 2022 and Special Civil Application No. 25021 of 2022 were filed with following prayers by the opponent herein:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or order directing the respondent no.2 authority to allot the land in question pursuant to the application dated: 12.03.2020 as well as pursuant to the letters dated 29.06.2020 & 10.01.2022 as expeditiously as possible within stipulated time frame as deemed fit by this Hon'ble Court;
(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the Respondent no.2 authority pursuant to the application dated 12.03.2020 as well as pursuant to the letters dated 29.06.2020 & 10.01.2022 as expeditiously as possible within stipulated time frame as deemed fit by this Hon'ble Court."
2.1 The issue was for taking a decision on the applications made by the respondent-petitioner for allotment of Government land for the purpose of Salt Pans or Prawns farming (Aqua-culture).
3. These petitions were disposed of on the basis of the stand of the Government in this connection which is reflected in para-3 of the order dated 23.12.2022. Para-3 reads as under: -
"3. Pursuant to the notice issued by this Court, learned Assistant Government Pleader states that the concerned officer is present in the Court with the remarks and cursorily indicates Page 2 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined that reasons for the delay in taking the decision with regard to making of allotment are technical, firstly being that another group of applicants had staked their claim for allotment for the purpose of Salt Pans, which now according to the learned AGP, has been finally decided as their applications for allotment of the same land/overlapping land for the purpose of Salt Pan has been rejected and therefore, now the only claim of allotment to the the petitioners remains. It is also submitted that certain technical issues are still pending in the form of carrying out measurement activity as the final allotment will have to be made to almost 31 applicants, who are the applicants similar to the present petitioners. Learned AGP lastly submits that after undertaking all the required procedure, the final allotment would be made within a period of four months from today to the successful selected candidates."
4. Learned Assistant Government Pleader has argued that though the State was in process of complying with the directions of the Court, but before the final decision could be taken, there was amendment in the relevant Act being Coastal Aquaculture Authority (Amendment) Act, 2023 and the land claimed by opponent- petitioner was falling in CRZ-1A where activities were prohibited except for exceptions and the activities of prawn farming by the opponent-petitioner did not fall in these exceptions. 4.1 It is therefore, submitted that on account of such a change in the law itself, it will be impossible for the State to make any allotment on the Government land to the opponent as per the directions. 4.2 Learned AGP submitted that when on behalf of the department, the assurance was given at that time, it was possible for the department Page 3 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined to stand by the assurance however, the subsequent development rendered the allotment as impossible being against the provisions. 4.3 Learned AGP has submitted that in the interest of public welfare and environmental protection, the amendment was notified in the Act. Consequently, the Government has not acted in an arbitrary or unreasonable manner by not complying with the order. 4.4 It is submitted that even if the allotment would have been done to the opponent after the amendment, the actions would have been initiated as per Environmental Protection Act, particularly, as per Sections 15 and 19 and further the CRZ implementing authority is also having powers to implement the Coastal Regularization Zones.
5. Learned advocate appearing for the opponent-original petitioner has submitted that the present application amounts to review of the earlier order and therefore, for the purpose of review, the application has to be presented within a period of limitation. The present application is not filed within the limitation and it is also not accompanied by any application for delay condone. 5.1 It is submitted that the review is permissible only on limited ground, however in the facts of this case, two grounds exit for review and the ground on which this application is filed on the ground of subsequent development, which cannot be a ground for review.
5.2 It is submitted that the Court has specified a time period by which the department had to decide on allotment, but the department Page 4 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined allowed the time to lapse. Had the department taken decision within stipulated time, the amendment would not have come in way.
5.3 Learned advocate for the opponent has relied upon the decision of the Apex Court inc case of Government of NCT of Delhi through its Secretary, Land and Building Department and Anr. v/s. M/s. K.L. Rathi Steels Limited and others, reported in, 2024 INSC 454 and by drawing attention to para-38 has submitted that invoking a review jurisdiction, condition that is required to be satisfied is that the party is required to be aggrieved and therefore, the locus for filing an application for review will only be on account of the person being adversely affected. It is submitted that it is the opponent-petitioner herein who is adversely affected by the decision and not the applicant-department. He has also specifically submitted that a review of decision cannot be undertaken on the basis of subsequent event/development and that the principal of review is required to be within the framework of the provisions under Order 47 of the Code of Civil Procedure.
5.4 Thereafter, learned advocate has relied upon the decision in case of Union of India v/s. Nareshkumar Badrikumar Jagad, reported in, 2019 (18) SCC 586 to substantiate his argument that only an aggrieved person has a locus to file a review.
5.5 Reliance is placed on the decision in case of Shanti Conductors (P) Ltd. v/s. Assam State Electricity Board, reported in, 2020 (2) SCC Page 5 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined 677 and decision in case of Pathapati Subba Reddy (Died) by L.Rs. and others v/s. Special Deputy Collector (Land Acquisition), reported in, 2024 (4) SCR 241, to emphasis upon the limitation for filing an application for review. He has drawn attention of this Court to paras-18 to 21 and para-12 of the respective decision in this regard.
5.6 Learned advocate has thereafter, cited decision in case of Parsion Devi v/s. Sumitri Devi, reported in, 1997 (8) SCC 715 to submit the limited scope and ambit of entering upon the review of an order and such review proceedings be strictly within the ambit of Order 47 of the CPC.
5.7 Learned advocate has thereafter relied upon the decision of the Apex Court in case of Beghar Foundation though its Secretary and others v/s. K.S.Puttaswamy (Retd.) and others, reported in, 2021 (3) SCC 1, particularly relying upon paras-11 and 14. 5.8 Lastly, learned advocate has relied upon the decision of Full Bench of this Court in case of Municipal Corporation of Ahmedabad though the Municipal Commissioner, Ahmedabad v/s. Voltas Limited and etc, reported in, 1994 (2) GLR 1325, specifically relying upon 7 to submit that in case of delay condone, the merit criteria is not a relevant consideration and therefore, unless delay is condoned, the matter cannot be examined on merits.
6. In rejoinder, learned Assistant Government Pleader has drawn attention of this Court to an affidavit filed by the Deputy Collector Page 6 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined on 15.10.2024 and placed on record a communication of Gujarat Pollution Control Board, addressed to the DILR specifically answering to the query that the GPCB has given an opinion of the specific land in question falling within the area of CRZ-1A.
7. The Court has heard learned advocates for the parties and perused the documents placed on record. At the outset, is required to be mentioned that the order dated 23.12.2022 which is sought to be recalled is not an order which is passed by examining the merits, but has been passed upon the stand taken by the applicant- department and that too in the petition, wherein the specific prayer was for direction to the authority to take a decision on the application of the opponent-petitioner regarding allotment of land within stipulated time frame.
7.1 In the opinion of the Court, this application was therefore, being for the recall of the order passed under Article 226 of the Constitution of India will have to be treated as an application for recall of the order which has been rendered as impossible to comply with the in view of the provisions of the Act which has been introduced by way of amendment though subsequently. It is relevant to observe that there is no challenge to the said amendment by the applicant at any stage at all.
8. The Court may examine the chronology of events which appears from the pleadings on 23.12.2022 order passed by this Court based on the written instruction of the officer concern. In compliance Page 7 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined with the order dated 23.12.2022, proceedings were initiated by establishing the Coastal Aquaculture Authority in accordance with the provisions of the Coastal Regulation Zone (CRZ), specifically Section 4 of Chapter 3 of the Coastal Aquaculture Authority Act, 2005. Pursuant to the order dated 23.12.2022, a committee meeting was convened to discuss the allotment of land on a long term lease for the purpose of prawn farming. Prior to the final decision being made, the Union of India amended the Coastal Aquaculture Authority (Amendment) Act, 2023 on 12.08.2024, wherein the land intended to be allotted to the present respondent has been declared as part of the CRZ-IA zone.
9. It is required to the noted that once the subject land which was supposed to be allotted to the present respondent has been declared CRZ-IA zone then the authority was no longer in a position to comply with the order dated 23.12.2022. The restriction of the CRZ- IA are mentioned at page-7 of the review application. The Court has issued Notice on 28.06.2024 and on that day respondent's advocate has waived service of Notice and no objection with regard to the delay in filling the Review application has been raised, however the prayer with regard to the delay has been made at page-11 Payer (G).
10. The Amendment dated 12.08.2023 still holds the field and since the subject land has been declared CRZ-IA zone to safeguard/protect the environment. The State is relying upon the Judgment rendered in Letters Patent Appeal No. 809 of 2023 reported in GLR 2024 (2) 1615.
Page 8 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined
10.1 The issue of review will come in picture when the Court proceeds to take a decision by examining the merits and demerits of the case and renders a judgment by assigning reasons. It is after this exercise that the decision of the Court is finally pronounced and therefore, having a re-look to the very decision is required to be circumscribed as provided for in Code of Civil Procedure specifically provision of Order 47 of the Code for review. 10.2 In the facts of the present case, as is recorded earlier, that the order sought to be recalled was not an order which was by examining the merits of the case and by assigning reasons, the conclusion is arrived at on the basis of the stand taken by the applicant- department which stand the department is unable to continue to take due to change in the law.
10.3 The main thrust of arguments of the opponent and the judgment cited is on the scope of review and the limited grounds on which power to review can be exercised. This Court has already observed that the power has already observed that the power exercised herein is that of recall which is different than that of review. The Court in the discussion in the proceedings paras has observed that the application by the State will have to be treated as an application for recall and for that purpose the limitation placed on the scope of review will not be available for recall of the order. 10.4 For this issue, the Court may refer the record of proceedings of Apex Court in case of Anjan Kumar Banerjee v/s. State of West Page 9 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined Bengal and others, reported in 2014 (1) SCC 697 where the Hon'ble Supreme Court has observed the conflict between the two Judgments, in Asit Kumar Kar v/s. State of West Bengal, reported in 2009 (2) SCC 703 and in case of Shaukat Hussain Guru vs. State (Govt. of NCT of Delhi), reported in, 2008 (6) SCC 776 and in view of decision in case of Shivdeo Singh v/. State of Punjab, reported in AIR 1963 SC 1909, reference has been made to larger bench. However, the Court may borrow the relevant paras of the two judgments i.e. Asit Kumar (Supra) (para-6) and Shivdeo Singh (Supra) (para-8), which are as under:-
"6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the facts of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party."
"8. The other contention of [the appellants] pertains to the second order [under Art.226] of Khosla, J., which in effect, reviews his prior order[under Art. 226]. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., [under Art. 226] affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla' J. entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that Page 10 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined the respondents before us had no. right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was e entertained by Khosla, J [under Arti.226]".
10.5 Though the Apex Court was examining the case based on the principle of natural justice, but the underlying purpose to distinguish the jurisdiction of review from the power to recall, in the opinion of the Court, can be well applied to the present case. 10.6 Though the application has been loosely framed as an application for review in the title of the application, but in the prayer clause, prayer is made for recall of the order dated 23.12.2022. This Court is also of the view that considering the tenor of the order dated 23.12.2023, the exercise that is undertaken by this Court is that of recall of the order as review of the order is not contemplated, particularly when the order disposing of the main matter was on the basis of consensus given by the other side and the direction is only with regard to the taking of decision on the application for final allotment of Government plots within stipulated period to the successfully selected candidates.
11. Coastal Aquaculture Authority (Amendment) Act, 2023 provides for a Zone and category of CRZ-1A and Clause-5.1.1 which defines CRZ- 1A which would read as under:-
" CRZ-IA:Page 11 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024
NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined These areas are ecologically most sensitive and generally no activities shall be permitted to be carried out in the CRZ-I A area, with following exceptions:
(i) Eco-tourism activities such as mangrove walks, tree huts, nature trails, etc., in identified stretches areas subject to such ecotourism plan featuring in the approved CZMP as per this notification, framed with due consultative process, public hearing, etc. and further subject to environmental safeguards and precautions related to the Ecologically Sensitive Areas, as enlisted in the CZMP.
(ii) In the mangrove buffer, only such activities shall be permitted like laying of pipelines, transmission lines, conveyance systems or mechanisms and construction of road on stilts, etc. that are required for public utilities,
(iii) Construction of roads and roads on stilts, by way of reclamation in CRZ-I areas, shall be permitted only in exceptional cases for defence, strategic purposes and public utilities, subject to a detailed marine or terrestrial or both environment impact assessment, to be recommended by the Coastal Zone .
Management Authority and approved by the Ministry of ' Environment, Forest and Climate Change; and in case construction of such roads passes through mangrove areas or is likely to damage the mangroves, a minimum three times the | mangrove area affected or destroyed or cut during the construction process shall be taken up for compensatory plantation of mangroves."
12. Therefore, the activities which can be undertaken in the area falling within CRZ-1A are restricted by the aforesaid definition and the activities which the opponent-petitioner desirous to undertake upon the plot being allotted is not covered under the activities specified and permitted to be undertaken under CRZ-1A.
Page 12 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined
12.1 Moreover, the State has already undertaken the study of the area and with the opinion of the GPCB, has technically arrived at a conclusion that the land claimed by the opponent-petitioner for aquaculture falling at village Jakho, Taluka: Abdasa, master mapping of which was undertaken by the Fisheries Department and by superimpose, master mapping by the Fisheries Department with the master mapping of CRZ-Map, the land administered falls in CRZ-1A.
13. Once this Court comes to the conclusion that the order is required to be recalled, as a necessary corollary the petition will have to be restored. However, in the facts of the present case, restoring of the petition would be of no consequence as the plots of land which are claimed by the respondent-petitioner for allotment in his application have been rendered impossible to be allotted in view of the amendment rendered and such plots of land falling in CRZ-1A, whereby the activities which the respondent-petitioner is contemplating is restricted.
14. Ordinarily, once the order in question is recalled, the petition ought to be restored on the Board of this Court. However, in the facts of the present case, where the original petition is for a prayer to decide their application and such petition has been disposed of by a consensus given by an officer of the Department without entering to the merits of the case, no useful purpose would be served in restoring the main petition on Board as by the operation of law and the land in question falling in area of CRZ-1A, no activities for Page 13 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined which the opponent-petitioner is claiming the allotment can be undertaken. As is recorded earlier, there is no amendment in the main petition as well to challenge the amendment to Coastal Aquaculture Authority (Amendment) Act, 2023 by which the plot of land has been put in the category of CRZ-1A.
15. To justify the decision of this Court for non entertaining the writ petition as well as the Court relies the decision of this Court in State of Gujarat v/s. Arvindbhai Thakorbhai Kayasth, reported in, 2024 (2) GLR 1615, the Court explained the doctrine of legitimate expectation vis-a-vis policy in public interest and relying upon the Apex Court decision held as under:-
20. The Apex Court in the case of State of Rajasthan and Others vs. Sharwan Kumar Mumawat (2023 SCC OnLine SC 898), in the matter of grant of quarry lease of minor minerals has held that while it is true that the application for renewal should be dealt with within a reasonable time, but the right to have the application disposed of in a reasonable time does not clothe an application for a lease with a right to have the application disposed of on the basis of the Rules in force at the time of making of the application. No one has a vested right to the grant or renew of lease and no one can claim a vested right to have an application for grant or renewal of lease dealt with in a particular way, by applying particular provision. In absence of any vested right in anyone, an application for lease has necessarily to be dealt with in accordance with the rules in force on the date of disposal of the application despite thefact that there is long delay since the making of the application. It was held that where the decision of the authorities was founded in public interest as per the executive policy or law, the court would be reluctant to interfere with such decision by invoking doctrine of legitimate expectation. The legitimate expectation Page 14 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024 NEUTRAL CITATION C/MCA/1343/2024 ORDER DATED: 06/12/2024 undefined doctrine cannot be invoked to fetter changes in administrative policy if it is in the public interest to do so. The decision-
makers' freedom to change the policy in public interest, cannot be fettered by applying the principle of substantive legitimate expectation so long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by the judicial review on the ground of legitimate expectation of an individual or group of individuals being defeated."
16. In the facts of this case also, the issue was claim of allotment of plots in Government land for the purpose of commercial activity of Aquaculture which allotment is rendered impossible upon an operation of law.
17. In view of the aforesaid the application is hereby allowed. The order stands recalled and the petition also stands disposed of with a liberty to the opponent-petitioner to persuade his claim with the Department afresh even to the extent of challenging the amendment in the Act for placing the area under the CRZ-1A.
18. Learned advocate for the opponent has prayed for stay of the present order. Considering the nature of issue involved, the present order of recall is stayed till 10.01.2025.
(A.Y. KOGJE, J) SIDDHARTH Page 15 of 15 Uploaded by SIDDHARTH(HC01065) on Wed Dec 18 2024 Downloaded on : Fri Dec 20 22:29:18 IST 2024